attempted offences

Question 1

what is meant by an offence?

Answer 1

When a person tries to commit an offence but fails to complete it.

Question 2

Criminal attempts act 1981: attempted offences

Answer 2

s1(1)- “if, with intent to commit an offence to which this section applied, 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 3

AR of attempted offence:

Answer 3

the person does an act which is more than merely preparatory to the commission of the offence

Question 4

MR of attempted offences:

Answer 4

intent to commit that offence

Question 5

Attorney-general’s reference (No.1 of 1992)(1993)

Answer 5

Legal principle: the D need not have performed the last act before the crime, nor need he/she reach the point of no return.

D dragged a girl up some steps into a shed. He lowered his trousers and interfered with her private parts. His penis remained flaccid. He argued that he could not therefore attempt to commit rape. His conviction for attempted rape was upheld.
Looking at the whole of D’s acts, this seems a sensible decision. However, if he had stopped immediately after he had dragged the girl to the shed, and before he lowered his trousers, then it is unlikely he would have been convicted. His act of dragging her was probably ‘merely preparatory’.

Question 6

R v Gullefer (1987)

Answer 6

Legal principle: the defendant must have gone beyond purely preparatory act and be ‘embarked on the crime proper’.

D jumped onto a 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.

Question 7

R v Geddes (1996)

Answer 7

Legal principle: preparatory actions stop when the D embarks on the crime proper.

D was found in the boy’s toilet block in 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. His conviction for attempted false imprisonment was quashed.

This result appears unjust as the D was clearly going to commit an offence. If the law of attempt is to be effective in protecting people from the main offence, then surely he should be guilty of an attempt at any point. Is it sensible to wait till he approaches a child

Question 8

R v Geddes principle

Answer 8

The Court of Appeal suggested two questions:
Had the accused moved from planning or preparation to execution or implementation?
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 9

R v Campbell (1990)

Answer 9

D, who had an imitation gun, sunglasses and a threatening note in his pocket, was in the street outside a post office. His conviction for attempted robbery was quashed.
The next step in this case would have been for D to enter the post office. Again, if the law is attempted to be effective in protecting people from the main offence, surely he should have been guilty of an attempt at this point? Is it sensible to wait until he enters the post office? If the gun had been real then customers and staff would have been put at risk.

Question 10

R v Boyle and Boyle (1987)

Answer 10

Legal principle: In cases where there has been an attempt the D can be guilty of an attempt to commit the full offence.

The defendants were found standing by a door of which the lock and one hinge were broken. Their conviction for attempted burglary was upheld.
The court of appeal held that the test to use was whether the defendant was embarking 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 11

R v Tosti (1997)

Answer 11

D intended to burgle premises. He took metal cutting equipment with him and hid it behind a hedge near the premises. He then examined the padlock on the door. He did not damage the padlock. He was found guilty of attempted burglary.

Both these cases are different to Campbell as a burglary is committed the moment the D enters the property as a trespasser with intent to steal. Robbery is not committed until D actually steals, in the course of which he uses force- walking into a building still needs another step.

Question 12

R v Jones (1990)

Answer 12

D’s partner told him that she wanted their relationship to end and that she was seeing another man, V. D bought a shotgun and shortened the barrel. D then found V, who was in his car, D was wearing a crash helmet with the visor down, got into V’s car and pointed the gun at V. V grabbed the gun and managed to throw it out the car window. D’s conviction for attempted murder was upheld.
D 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 with the visor were all preparatory acts. But once D got into V’s car and pointed the gun at V, then there was sufficient evidence to leave to the jury the question of whether there was an attempt.

Question 13

How do you decide when you are MORE THAN merely preparing?

Answer 13

You can work backwards from the offence and see when the act occurred and is more than just preparing.
Campbell (1990)
If he entered the post office and showed the gun and note to the person behind the counter and obtained money- robbery
If he has shown the note and gun but not obtained the money, or changed his mind- no theft, but attempt because the acts are more than preparatory.
If he went into the post office with his note and gun hidden it becomes more problematic. – could be attempted burglary (intention to steal when entering the building) but not robbery as it is merely preparatory.
If he does not enter the building there is no offence of burglary or robbery as carrying the note is merely preparatory for robbery and he has not entered the building so no burglary

Question 14

MR of attempt

Answer 14

R v Easom (1971)
D picked up a woman’s handbag in the cinema, rummaged through it, then put it back on the floor without removing anything from it. His conviction for theft of the bag and the specific content (including a purse and pen), as there was no evidence that D intended to steel the items.
In this case, there was no evidence that D had intended permanently to deprive the owner of the bag or items in it (part of the required mens rea for theft). As a result, he could not be guilty of attempted theft.

Question 15

R v Husseyn (1977)

Answer 15

D and another man were seen loitering near the back of a van. When the police approached, they ran off. D was convicted of attempting to steal some sub-aqua equipment that was in the van. The Court of Appeal quashed his conviction.

These decisions have been criticised as in both cases they would have ended in theft. This leads to an unjust result as people who were clearly going to commit a crime have not been held liable. This issue was resolved in Attorney-General’s reference (Nos 1 and 2 of 1979)(1979) where it was decided that if the D had conditional intent (they intended to stealing if there was anything worth stealing), D could be charged with an attempt to steal

Question 16

R v Whybrow (1951)

Answer 16

The defendant wired up his wife’s bath and caused her an electric shock. He was convicted of attempted murder. When he appealed, the court, although upholding his conviction, criticised the trial judge’s summing up and stressed that only intention to kill was sufficient for the mens rea of attempted murder.
MR of attempted murder = The D had the intention to kill
This is a higher level of intention than the actual offence (the intention to kill or cause GBH).
The justification for this is on the grounds of public policy and that a defendant should not be permitted to escape a conviction for murder if the evidence shows that death occurred as a direct result of their assault intended to result in GBH.
If no death occurs and the defendant intended GBH then a s18 charge would still achieve justice

Question 17

R v Millard and Vernon (1987)

Answer 17

legal principle: recklessness is not enough MR for attempted crimes

The defendants repeatedly pushed against a wooden fence on a stand at a football ground. The prosecution alleged they were trying to break it and they were convicted of attempted criminal damage. The court of appeal quashed their convictions.

Recklessness is not enough of a MR to be guilty of an attempted crime, even when the MR of the completed offence includes recklessness. However, there appears to be an exception in Attorney-General’s reference (No.3 of 1992)(1994)

Question 18

Attorney- General’s Reference (No 3 of 1992)(1994)

Answer 18

D threw a petrol bomb towards a car containing four men. The bomb missed the car and smashed harmlessly against the wall. D was charged with attempting to commit arson with intent to endanger life. The trial judge ruled that it had to be proved that D intended to damage property and to endanger life. D was acquitted.
The Court of Appeal held that the trial judge was wrong. It was necessary to prove that D intended to damage property, but it was only necessary to prove that he was reckless as to whether life could be endangered.

This case was criticised in R v Pace and Rogers (2014) by Davies LJ “It is a matter of ordinary language- the intent to commit an offence”- this means the intent to commit all the elements of the offence.
For those offences that can be reckless, the prosecution must prove INTENT to commit the offence

Question 19

Impossibility

Answer 19

In some cases, a defendant may intend to commit an offence and do everything possible to commit it but in fact, the offence is impossible to commit.
E.G the defendant goes to the victim’s room to stab them but finds the victim has died of a heart attack an hour earlier. They had merely stabbed a dead body.
Can the defendant be guilty of murdering a dead body when it is physically impossible to murder someone who is already dead?

Question 20

Common law

Answer 20

The House of Lords (pre 1981) held that when a crime was legally or physically impossible to commit the defendant cannot be guilty of murder.
The criminal attempts act 1981 (s1(2)- closed the loophole and made it a criminal offence to attempt a crime, even if it was impossible.
‘ 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.’
This was then considered in Anderton v Ryan (1985)

Question 21

Anderton v Ryan (1985)

Answer 21

Mrs Ryan bought a video recorder very cheaply. She thought it was stolen. Later she admitted this to police who were investigating a burglary at her home. Her conviction was quashed because the video recorder was not in fact stolen.
The House of Lords held that even though Mrs Ryan had gone beyond merely preparatory acts, in fact all her acts were innocent. The video recorder was not stolen. On this basis, they thought that s1(2) did not make her guilty.

legal principle: you cannot be guilty of attempting an impossible crime if you only carry out innocent acts.

Question 22

R v Shivpuri

Answer 22

D agreed to receive a suitcase that he thought contained prohibited drugs. The suitcase was delivered to him, but it contained only snuff and harmless vegetable matter. D was convicted of attempting to be knowingly concerned with dealing with prohibited drugs.