Attempting to Commit an Offence

Question 1

WHAT DOES ‘INCHOATE’ MEAN?

Answer 1

It is the term used to describe activities which precede the commission of a full offence, but which may amount to a criminal offence themselves.

Question 2

WHAT IS AN ATTEMPT?

Answer 2

Conduct by the defendant with the aim of committing an offence which, for some reason, does not succeed or is abandoned.

Question 3

UNDER S1 CRIMINAL ATTEMPTS ACT 1981, WHEN IS THE OFFENCE OF AN ATTEMPT COMMITTED?

Answer 3

With intent to commit [any offence triable on indictment or either way] a person does an act which is more than merely preparatory to the commission of the offence.

Question 4

WHAT DOES AN ATTEMPT REQUIRE PROOF OF?

Answer 4

That the defendant:

1. Did an act that was more than merely preparatory
2. To the commission of an indictable offence
3. With the intent to commit that offence

Question 5

WHAT IS THE ACTUS REUS OF AN ATTEMPT?

Answer 5

1. An Act
   - an omission will not suffice
2. More than merely preparatory
   - whether the defendant got sufficiently close to
   committing the full offence to being justifiably
   regarding as having attempted it.

      - Case law provide example of how this is 
        interpreted but they are not binding precedents. 
        Each case is judged on its individual facts.

3. An indictable offence
   - this covers offences that are purely indictable and
   those which are tried wither way.

Question 6

WHAT IS THE MENS REA OF AN ATTEMPT?

Answer 6

The statutory definition of the mens rea is the intention to commit the offence.

Question 7

IN ORDER TO BE GUILTY OF AN ATTEMPT, WHAT MUST THE DEFENDANT INTEND?

Answer 7

The defendant must intend the conduct and the consequence specified in the actus reus of the crime

In Whybrow [1951] it was held that the defendant could not be guilty of attempted murder where he had intended only serious injury. This means, the mens rea for attempted murder - intention to kill - is much stricter than the mens rea for the full offence of murder.

Question 8

WHAT WAS THE DECISION IN KHAN [1990]?

Answer 8

Khan [1990] confirmed that rule that the defendant must intend the conduct and the consequence elements of the actus reus but that it is enough for the defendant to be reckless about any circumstance elements of the actus reus.

Question 9

WHAT IS MEANT BY ‘ATTEMPTING THE IMPOSSIBLE’?

Answer 9

They defendant may commit and attempt an offence in circumstances where it was impossible to actually commit the offence.

For example:

• Outside intervention
• Defendant’s own incompetence
• Absence of the target object

Question 10

CAN A DEFENDANT BE GUILTY OF AN OFFENCE EVEN THOUGH THE COMMISSION OF THE OFFENCE IS IMPOSSIBLE?

Answer 10

Yes - s1(2) Criminal Attempts Act 1981

If on the facts the defendant believed them to be, the defendant would have been guilty of the offence, they will be guilty of an attempt to commit the offence if they have done an act that was more than merely preparatory..

This was confirmed in Shivpuri [1986].

Question 11

WHAT IS THE LIKELY EFFECT OF THE DECISION MADE IN PACE AND ROGERS [2014] IN RESPECT OF THE MENS REA OF AN ATTEMPT?

Answer 11

It is likely the decision made applies to govern the mens rea.

This would mean that the defendant must have the intention of every element of the actus reus of the offence he is attempting.