9 - Incohate Offences (Attempts) Flashcards
Why is an attempt to commit a crime classified as an ‘inchoate’ offence?
An attempt to commit a crime is an offence in itself, classified as an ‘inchoate’ offence, meaning it is incomplete in some way.
Several reasons may cause the accused to fail in completing the crime:
- The accused might be arrested before they complete the offence.
- The victim may manage to escape.
- The defendant may voluntarily withdraw from the plan before committing the offence.
How does the Criminal Attempts Act (CAA) 1981 define the offence of attempt?
Under s 1(1) of the CAA 1981, an attempt is defined as follows:
- If a person, with intent to commit an offence to which this section applies, performs an act that is more than merely preparatory to committing the offence, they are guilty of attempting to commit that offence.
This definition applies to acts that go beyond preparation and show clear intent to complete the offence.
Which offences can be charged as attempts under the Criminal Attempts Act (CAA) 1981, and what are the limitations?
Almost all indictable offences (those that may be tried in the Crown Court) can be charged as attempts under the CAA 1981.
Summary-only offences (those handled in the magistrates’ court) are excluded under the Act, so attempted offences such as simple assault cannot be charged.
However, some statutes that create summary-only offences include specific provisions for attempts (e.g., attempting to drive a motor vehicle over the alcohol limit), though these are outside the scope of this manual.
What must the prosecution prove to establish the actus reus of an attempt?
To establish criminal liability, the prosecution must prove all elements of both the actus reus and mens rea.
According to s 1(1) of the Criminal Attempts Act (CAA) 1981:
- The defendant must commit an act that is “more than merely preparatory” to the offence.
- Liability for attempt applies only to actions, not omissions.
How does the Criminal Attempts Act (CAA) 1981 distinguish between actions and omissions for liability in an attempt?
The CAA 1981 specifically refers to “an act,” meaning that liability for an attempt requires a positive action rather than an omission
Example: Tammie, a care worker, failed to visit her elderly client, Marjorie, who almost died of dehydration. Despite Tammie’s contractual obligation to care for Marjorie, her omission alone does not fulfil the actus reus of attempted homicide, as no culpable act was performed.
What does it mean for an act to be “more than merely preparatory” in the context of an attempt, and how is this determined?
For the actus reus of an attempt, the defendant’s act must be more than merely preparatory to committing the crime.
This is a factual question for the jury, who must consider the evidence in each case. Judicial guidance has clarified when an act may go beyond mere preparation:
- R v Gullefer: The defendant’s act of jumping onto a racetrack, hoping the race would be voided to recover his bet, was deemed merely preparatory. The Court of Appeal concluded that he had not done enough for criminal liability, as he needed to take further steps, such as retrieving his ticket and requesting a refund.
Key Points:
- What Gullefer did: Jumped onto the track.
- Further steps needed for liability: Climb back over the fence, go to the bookmakers, and ask for a refund.
R v Jones: The Court of Appeal held that Jones crossed “the line in the sand” from preparatory steps to committing the crime proper when he climbed into the victim’s car and pointed a gun, marking the point where the actus reus for attempted murder was complete.
How does the court assess whether the defendant’s actions in an attempt case satisfy the “more than merely preparatory” requirement?
The judge first evaluates if the prosecution’s evidence would allow a jury to reasonably conclude that the defendant’s actions went beyond mere preparation:
- If not, and the actions were clearly only preparatory, the judge must withdraw the case from the jury.
- If yes, then it is up to the jury to decide, as a question of fact, whether the defendant’s actions constituted an attempt.
Timing concerns:
- The point of liability may be “surprisingly late” in the sequence of actions, which can complicate law enforcement efforts.
- Acting too early risks acquittal, while acting too late may mean the offence is completed, posing a risk to public safety.
What mens rea must the prosecution prove for an attempted offence?
The mens rea of an attempt requires that the defendant intends to commit the specific offence.
- Example: In R v Whybrow (1951), the defendant wired a soap dish to electrocute and kill his wife. The Court of Appeal held that, for attempted murder, there must be an intent to kill, a higher mens rea than murder, where intent to cause grievous bodily harm (GBH) is sufficient.
Intent can include both direct and indirect intent, applying the test from R v Woollin.
Foresight of death as a virtual certainty can be used as evidence from which the jury may find an intention.
How does the mens rea for attempt apply to offences involving grievous bodily harm (GBH)?
In attempted GBH under s 18 of the Offences Against the Person Act (OAPA) 1861, the prosecution must prove an intent to cause serious harm.
Example: If Larry uses a knife to cause a cut on Janice’s face, this could show intent to cause serious harm, making him liable for attempted GBH under s 18.
For a lesser s 20 assault, the prosecution must still prove intent to inflict GBH for an attempt, even though recklessness is sufficient for the full offence. Therefore, an attempted s 20 assault charge is rare due to the required intent for GBH.
How is mens rea established for attempted offences with an ulterior intent?
Some offences require proof of an ulterior mens rea, as in aggravated criminal damage, where the defendant must:
- Intend or be reckless as to destroying or damaging property, and
- Intend or be reckless as to endangering life.
Attorney General’s Reference (No. 3 of 1992) clarifies that, for an attempt, only the intent to cause criminal damage is required, while recklessness is sufficient for the secondary element of endangering life
How does the law handle attempted aggravated arson where there is a secondary element of endangering life?
For attempted aggravated arson, the actus reus is doing an act that is “more than merely preparatory.”
- Example: If Junaid drives to his ex-partner’s house intending to start a fire, with a petrol can, lighter, and cloth, the jury could find he has moved from preparation to “embarking on the crime proper,” meeting the actus reus.
For the mens rea:
- Junaid must intend to cause damage by fire (arson), and he must also intend or be reckless as to endangering life.
- Since he admits foreseeing a risk that his ex-partner and children might be home, he is reckless regarding the risk to life, satisfying the ulterior intent requirement for aggravated arson.
Aggravated criminal damage (full offence)
Actus reus:
* Damage to property
Mens rea:
* Intention or recklessness as to damaging property
* Intention or recklessness as to endangering life by the damage
Attempted aggravated criminal damage
Actus reus:
* More than merely preparatory act
Mens rea:
* Intention to damage property [Intention to achieve what is missing from the actus reus. D must intend to bring about the consequences required for the full offence. Recklessness is not enough for this part of the mens rea.]
* Intention or recklessness as to endangering life by the damage [Mens rea which does not relate to the actus reus. Mens rea for the full offence. Recklessness is sufficient for this part of the mens rea.]
What are the three main types of impossibility?
Where a defendant sets out to commit a crime, which is in fact impossible to commit, can the prosecution nevertheless seek D’s conviction for an attempt or will the impossibility of committing the full offence provide a defence?
There are three main types of impossibility:
- non-existent crime;
- through inadequacy; and
- in fact.
What is “impossibility through inadequacy” in criminal attempts?
“Impossibility through inadequacy” occurs when the crime itself is possible, but the defendant uses a method that cannot work.
- For example, poisoning someone with a harmless substance or attempting to open a bombproof safe with ineffective explosives.
- Such an argument cannot succeed, as a defendant who attempts to commit a serious crime, like murder, should not avoid conviction just because they chose a flawed method.
- A defendant in this situation would still be convicted of an inchoate offence, such as attempted murder, even if their chosen method was doomed to fail.
What is meant by the concept of a “non-existent crime” in relation to attempts?
A “non-existent crime” arises when the accused believes they are committing an offence, but in reality, the act they are committing is lawful.
- You cannot turn a lawful act into an unlawful act.
- Therefore, if a defendant intends to commit something that is not an actual crime, they cannot be convicted for an attempt.
Example: In R v Taaffe (1983), Taaffe was caught importing illegal drugs into the UK. He believed he was importing currency, thinking it was an offence. However, there was no offence of importing currency, so he could not be convicted for attempting to import currency.
How does the law treat “impossibility in fact” in relation to criminal attempts?
The law, under s 1(2) & (3) of the Criminal Attempts Act 1981, has reversed the common law position, making impossibility in fact no longer a valid defence to attempt.
If the defendant’s actions go beyond mere preparation, they can be convicted of an attempt, even if the crime they intended to commit is impossible.
Example: In R v Shivpuri (1987), the defendant believed he was smuggling drugs, but the substance was harmless. Despite this, he was convicted of attempting to deal with illegal drugs because the attempt was still valid under the law, even though the crime could not have been completed.
