1B.7.1 Attempts

Question 1

What is an attempt?

(In plain English)

Answer 1

Where a person tries to commit an offence, has the mens rea to do so, but, for some reason, fails to complete it.

Question 2

Where is an attempt defined?

Answer 2

s1 Criminal Attempts Act 1981

Question 3

Can an attempt be done by an act or omission?

Answer 3

Only an act - there cannot be an attempt at a crime that can only be committed by an omission.

Question 4

White (1910)

Answer 4

D put cyanide in his mother’s drink, intending to kill her. She died of a heart attack before she could drink it. The defendant was not the factual cause of her death; he was not guilty of murder, though he was guilty of attempted murder.

Question 5

Definition of attempt

Answer 5

‘If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence.’

Question 6

What types of offences can be charged as an attempt?

Answer 6

Typically an attempt can only be brought if the full offence is one which is triable-either-way or indictable.

In general, summary offences cannot be charged as an attempt.

Question 7

Cases for “more than merely preparatory”

Answer 7

• AG Ref (No1 of 1992)
• Gullefer (1987)
• Geddes (1996)
• Campbell (1990)

Question 8

Give examples of cases in which there was an attempt

Answer 8

• Boyle & Boyle (1987)
• Totsi (1997)
• Jones

Question 9

AG Ref (No1 of 1992)

[“More than merely preparatory”]

Answer 9

D dragged a girl upstairs, lowered his trousers and touched her intimataly, but couldn’t get an erection.

Held: Attempted rape as there was no more preparation he could have done.

Question 10

Gullefer (1987)

[“More than merely preparatory”]

Answer 10

The defendant jumped onto a greyhound race track in order to have the race declared void and so enable him to reclaim money he had bet on the race.

His conviction for attempting to steal was quashed because his action was merely preparatory to committing the offence.

He had not ‘embarked on the crime proper’.

Question 11

Geddes (1996)

[“More than merely preparatory”]

Answer 11

The defendant was found in a toilet at a school, in possession of a large kitchen knife, some rope and masking tape. He had no right to be in the school. He had not contacted any of the pupils.

Held: Not guilty because he had not moved on to the execution/implementation phase of the crime.

Question 12

Campbell (1990)

[“More than merely preparatory”]

Answer 12

The defendant, who had an imitation gun, sunglasses and a threatening note in his pocket, had been seen loitering outside a post office. He went away but returned a few minutes later with a slightly changed appearance.
When he was in the street 1m away from the post office, he was arrested and admitted he was going to rob the post office.

His conviction for attempted robbery was quashed as this was still ‘merely preparatory’.

Question 13

Meaning of ‘more than merely preparatory’

Answer 13

• In R v Gullefer (1987), it was said that ‘more than merely preparatory’ means that the defendant must have gone beyond purely preparing for the offence. They must have ‘embarked on the crime proper’.
• In R v Geddes (1996) the Court of Appeal said that attempts to be considered by considering two questions:

1) Had the accused moved from planning or preparation to execution or implementation?

2) Had the accused done an act showing that he was actually trying to commit the full offence, or had he got only as far as getting ready or putting himself in a position, or equipping himself, to do so?

Question 14

Boyle & Boyle (1987)

[“More than merely preparatory”]

Answer 14

The defendants were found standing by a door which had a broken lock and hinge.

Held: Guilty of burglary as the defendant had ‘embarked on the crime proper’.
- In this case, once the defendants had entered they would be committing burglary, so trying to gain entry was an attempt.

Question 15

Totsi (1997)

[“More than merely preparatory”]

Answer 15

The defendants intended to burgle premises. He took metal cutting equipment wit him and hid it behind a hedge near to the premises. He then examined the padlock on the door. He did not damage the padlock.

He was found guilty of attempted burglary.

Question 16

Jones (1990)

[“More than merely preparatory”]

Answer 16

D’s partner left him. The D bought a shotgun, shortened the barrel and disguised himself. He then found the V (his partners new partner), who was in his car. The D got into the car and pointed the gun at the V, who grabbed the gun and managed to throw it out of the car window. D was convicted of attempted murder.

The D had tried to argue that, as the safety catch was still on, he had not done the last act before the crime proper. The Court of Appeal said that buying the gun, shortening it, loading it and disguising himself were all preparatory acts. But once the defendant got into the victim’s car and pointed the gun, there was sufficient evidence to leave the jury the question whether there was an attempt.

Question 17

Cases showing the mens rea for attempts

Answer 17

• R v Easom (1971) – there was no evidence that the defendant had intended to permanently deprive the owner of the bag or items in it, so he could not be guilty of attempted theft.
• R v Husseyn (1977)

Question 18

What is the mens rea for attempts?

Answer 18

For an attempt, the defendant must normally have the same intention as would be required for the full offence. If the prosecution cannot prove that the defendant had the intention then they are not guilty of the attempt.

Question 19

Easom (1971)

[Mens rea of attempted theft]

Answer 19

D rummaged though a woman’s bag.

Held: no attempted theft as no evidence of intention to permanently deprive

Question 20

Husseyne (1977)

[Mens rea of attempted theft]

Answer 20

The D was loitering near the back of a van and ran off when police arrived.

Held: no attempted theft from the van as no evidence of intention to steal the equipment in the van.

Question 21

Mens rea of attempted murder

Answer 21

The mens rea for attempted murder involves proving a higher level of intention than for the full offence of murder.

• The full offence requires that the prosecution proves the defendant had the intention either to kill or to cause GBH.
• However, for attempted murder, the prosecution must prove an intention to kill. An intention to cause GBH is not enough.

If no death occurs and there is evidence that the defendant intended to commit GBH, then this is a s18 OAPA 1861 offence, rather than attempted murder. The maximum sentence is the same.

Question 22

Case for the mens rea of attempted murder

Answer 22

• Whybrow (1951)

Question 23

Whybrow (1951)

[Mens rea of attempted murder]

Answer 23

D electrocuted his wife in the bath.

Held: Prosecution must prove intention to kill, not merely GBH or oblique intent.

Question 24

Can recklessness be mens rea of attempt?

Answer 24

No - it was decided in the case of Millard & Vernon (1987) that recklessness is not sufficient.

However, there is an exception where recklessness as to one part of the offence can be sufficient, as seen by the case of A-G Ref (No.3 of 1992).

• There are some offences where recklessness is sufficient mens rea for the full offence. For an attempt of such offences, the prosecution must prove that the defendant had the intent to commit the offence.

Question 25

Millard & Vernon (1987)

Answer 25

D’s pushed wooden fence at football ground. P stated they were reckless in breaking it (foresight of consequence and went on to take risk).

Held: reckless is not enough for the mens rea of attempt

Question 26

A-G Ref (No.3 of 1992)

Answer 26

D threw a petrol bomb at people, he missed and hit a wall. Charged with attempting to commit arson with intent to endanger life.

Held: 2 parts to the offence. One requires intention the other reckless so D could be convicted of this attempt.

Question 27

Impossible attempts

Answer 27

In some situations, a person may intend to commit an offence and may do everything they possibly can to commit it, but in fact the offence is impossible to commit.

s1(2) Criminal Attempts Act 1981 states a person may be guilty of attempting to commit an offence, even though the facts are such that the commission of the offence is impossible.

The precedent in Shivpuri means that a person could be guilty of an attempt even if committing the full offence was impossible.

Question 28

Cases for impossible attempts

Answer 28

• Anderton v Ryan (1985) - Overturned
• Shivpuri (1986) - Precedent

Question 29

Anderton v Ryan (1985)

Answer 29

Mrs Ryan bought a video recorder very cheaply. She thought it was stolen. Later she admitted this to the police who were investigating a burglary at her home.

Her conviction was quashed because the video recorder was not in fact stolen; it was cheap because it was defective.

Question 30

Shivpuri (1986)

Answer 30

The defendant agreed to receive a suitcase which he thought contained illegal drugs. The suitcase was delivered to him, but it contained dried cabbage leaves – instead of the cannabis, which the D thought it was.

Held: D intended to commit the offence and was therefore liable – even though it was impossible to commit the offence.
- House of Lords used the Practice Statement to overrule Anderton V Ryan.