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A line needs to be drawn between acts of preparation and acts which are more than preparation
that will create more liability
There is a difficulty with attempt liability as this distinction is not easy.
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The key to attempt liability is the actus reus. The actus reus of an attempt is defined in
section 1(1) of the Criminal Attempts Act 1981 of doing of an act which is more than
merely preparatory to the commission of the offence.
But what is more than merely preparatory? There is no hard and fast rule.
Section 4(3) of Criminal Attempts Act 1981 excludes:
i) Attempting to conspire
ii) Attempting to aid, abet, counsel or procure;
iii) Attempting to assist an offender after the commission of a crime.
a) Two competing theories underpinning explanations of attempt liability
i) Objectivist - to look at conduct and prioritise whats happened and look at actions of
defendant and say did they go far enough
ii) Subjectivist - look at the defendants mind, did they intend to cause the actual result.
b) What must the D have done to be criminally liable for an attempt?
i) Position prior to 1981 Act
R v Stonehouse [1978]
Proximity test - Lord Diplock said that to pass the threshold of proximity, the
defendant must have crossed the Rubicon and burnt his boats.
Prior to the 1981 Act, the last act approach was taken. It was asked what happened
in the series of actions an how close the last act was to committing the full offence.
Objectivist approach
ii) Criminal Attempts Act 1981
Allen in Textbook on Criminal Law 7th ed (2003, 278)
At some point Ds acts will cross over from being merely preparatory to being more
than merely preparatory.
At what point is an attempt committed?
Is the current approach different from proximity text developed prior to 1981 Act?
R v Gullefer (1990)
Details of Case -> Gullefer bet on dogs and put down a stake and then regretted it so he tried to
stop the race. He jumped up and down furiously to try and distract the dog which didnt work.
He was convicted for attempted theft, but appealed.
Held -> The CA allowed this appeal and dismissed his conviction on the ground that waving
your arms around did not go far enough to more than merely preparatory. This is quite an
objectivist view
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it [an attempt] begins when the merely preparatory acts come to an end and the
defendant embarks upon the crime proper. When that is will depend of course upon the
facts in any particular case (per Lord Lane).
R v Jones (1990)
Details of Case -> Jones was a married man who was having an affair, however his mistress got
bored and left him for another man. Jones wanted to get revenge on the new guy. He applied and
received he a shot gun licence and then he test fires the guns. He goes out to try and kill the man.
He knows the new guy takes the kids to school every morning, so he decided to jump in the car
after hes dropped them off. He jumps in the car and pulls out the gun and yells your not going
to like this, but safety hatch was on! They fight and the gun flies out the window. He was
convicted for attempted murder, but he appeals saying that he had not got to the last point to kill.
Held -> This appeal is dismissed and the attempted murder charge is upheld.
The words an act which is more than merely preparatory to the commission of the
offence would be inapt if they were intended to mean the last act which lay in his power
towards the commission of the offence.Clearly his actions in obtaining the gun, in
shortening it, in loading it, in putting on his disguise, and in going to the school could
only be regarded as preparatory acts. But, in our judgment, once he had got into the car,
taken out the loaded gun and pointed it at the victim with the intention of killing him,
there was sufficient evidence for the consideration of the jury on the charge of
attempted murder (per Lord Taylor CJ).
.comparison
R v Campbell (1991)
Details of Case -> The defendant attempted to rob a post office. On the day he gets ready and
drives to the post office and parks his car nearby. However, he is only carrying an imitation gun.
He has a note written to give to the people to give him the money. He walks towards the post
office but gets stopped as police have had a tip off. At trial he is convicted of attempted robbery,
but appeals.
Held -> The appeal is allowed and his conviction is quashed because he had not got far enough
into actions which were more than mere preparation, it was just preparation.
Attorney-Generals Reference (No. 1 of 1992) (1993)
in the present case the evidence of the young womans distress, of the state of her
clothing, and the position in which she was seen, together with the respondents acts of
dragging her up the steps. Lowering his trousers and interfering with her private parts,
and his answers to the police, left it open to a jury to conclude that the respondent had
the necessary intent and had done acts which were more than merely preparatory. In
short that he had embarked on committing the offence itself (per Lord Taylor CJ).
Patnaik (unreported, 5 November 1999)
it is not a necessary threshold of a case for a jury on a charge of attempted rape that a
defendant, who was engaged in an act of violently subduing a woman with intent to rape
her, should have gone as far as, say, start to undo or remove her clothing or his own or
to do some other unequivocal sexual act. It is sufficient if there is evidence from which a
jury could infer the intent and of acts which they could properly conclude were more
than merely preparatory (per Auld LJ).
R v Rowley (1992)
R v Geddes [1996]
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Clarkson et al:
In short, talk about a midway point is empty rhetoric disguising the judges desire to
give themselves maximum flexibility. (2007, 499)
It is almost impossible to extract any clear principles from the cases interpreting
section 1(1). (2007, 499)
As thecases demonstrate, in many instances this test is problematic and appears to
be little more than yet another smoke-screen behind which policy can dictate when
liability should be imposed. (2003, 491)
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managed to engage in sexual intercourse would there have been the full offence
of rape. All the elements of rape, apart from penetration, were present. So the
missing element in Khan was the actual sexual intercourse. The missing
element test requires the defendant to supply that missing element.
As between views 1 and 2 the key question is whether Attorney-Generals Reference
extended the Khan decision or merely followed it. The debate centres on the holding in
the Attorney-Generals Reference case that recklessness that lives be thereby
endangered is sufficient for the offence of attempted aggravated arson. But is the
requirement that lives be thereby endangered a consequence or a circumstance? One
could argue either way. It is a consequence: there is the act of arson as a result of which
lives are put in danger. It is a circumstance: arson was committed in a situation where
lives could be endangered. If you think that the endangerment of lives is a consequence
then the CA appears to have accepted the view that recklessness as to the consequences
of a defendants actions can be sufficient for an attempt. It should be noted that the CA
in Attorney-Generals Reference claimed to be following Khan, which might support the
circumstances only view.
The CA in Attorney-Generals Reference proposed the missing element test. It
indicated that it thought it was an easier test for juries to understand, rather than being
a difference in law. However, it is possible to imagine cases where the missing elements
test and the Khan test would produce a different result.
What does intent mean?
Pearman (1984) confirms that the word intent in the Criminal Attempts Act carries
the same meaning as in the common law. In other words, it includes direct intent and
sometimes indirect intent.
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More controversial is a much-debated hypothetical case where D sticks pins into a wax
model of V genuinely believing that doing so will release evil powers which will kill V. If
D is a devout believer he may believe that sticking pins into the model of V is as effective
as stabbing V. Although there is a widespread view that the use of such radically
deficient means to attempt should not amount to an attempted murder, it is in fact hard
to explain how it is different from the case where D shoots at V who is in such a long
way away that there is no way that a bullet could reach him. The best explanation is that
offered by Duff who argues that such conduct failed to engage with the world as an
attempt to commit the offence.
3) Physical factual impossibility. Here the reason for the failure is not the
ineffective means used, but is that the crime simply cannot be committed. For example
D tries to kill V who he thinks is asleep, but is in fact dead. Or D plants seeds believing
they will grow into a cannabis plant, but in fact grows chives. In these cases the
defendant can still be guilty.
The law is governed by section 1(2) and (3) of the Criminal Attempts Act 1981:
(2) A person may be guilty of attempting to commit an offence to which this section
applies even though the facts are such that the commission of the offence is impossible.
(3) In any case where
a) apart from this subsection a persons intention would not be regarded as having
amounted to an intent to commit an offence; but
b) if the facts of the case had been as he believed them to be, his intention, would be so
regarded, then, for the purposes of subsection (1) above, he shall be regarded as having
had an intent to commit that offence.
The effect if these provisions is that what is key for the law on attempts in this area is the
accuseds intention. For the purposes of impossible attempts the facts are taken to be
the facts as the defendant believed them. So if the defendant believes he is dealing in
illegal drugs he can be convicted of an attempted drug-dealing offence, even if in fact
what he is selling is chalk. He will be guilty of an attempt to deal in drugs.
Shivpuri [1987]
Details of Case -> Shivpuri was arrested by customs officers. He confessed that he was
dealing in illegal drugs. However, on further analysis, it would found that the suitcase
did not contain illegal drugs but snuff and harmless vegetable matter. He was charged
with an attempt to commit the offence of being knowingly concerned in dealing with
and harbouring prohibited drugs. He appealed against his conviction on the basis that,
as he did not have in his possession an illegal drug, he could not be charged in
connection with an attempt to deal in such drugs. The CA dismissed his appeal and he
then appealed to the HL.
Held -> Appeal dismissed.
Commentary -> The Lordships overruled their decision in Anderton v Ryan and held
that if, on the facts as the defendant believed them to be, the defendant was doing
something that was more than merely preparatory to the commission of the offence, he
can be convicted of an attempt. Shivpuri does much to clarify the law.
There is one significant area of doubt, and that is what believe means here. What if D
has sexual intercourse with V who consents to the sexual intercourse, but D is not sure
whether V consents. Is this doubt enough for believes in section 1(2)? In other words
for the purposes of the section 1(2) in deciding whether the defendant has performed an
act which was more than merely preparatory on the facts as the defendant believed
them to be, are suspected beliefs sufficient?
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