Attempts

Question 1

What is an inchoate offence?

Answer 1

An inchoate offence occurs when the defendant takes some steps towards committing a crime but the full offence is not committed.

Question 2

What is the AR and MR for inchoate offences?

Answer 2

· Actus reus (AR)- An act which is more than merely preparatory to the commission of an offence;

· Mens rea (MR)- An intention to commit the full offence e.g. for attempted murder, the defendant must have an intention to kill; and

· Absence of a valid defence- A defendant cannot be convicted for a non-existent crime, Taaffe.

Question 3

What does ‘An act which is more than merely preparatory.’ mean?

Answer 3

‘An attempt begins when the merely preparatory acts come to an end and the defendant embarks on the crime proper or the actual commission of the offence.’

Question 4

What are examples of merely preparatory acts?

Answer 4

• Being outside a post office with a threatening note and fake gun (not attempted robbery, Campbell (1990) 93 Cr App R 350)
• Being in school toilets with a knife and rope but no schoolchildren (not attempted false imprisonment, Geddes [1996] Crim LR 894)

Question 5

What are examples of acts that are more than merely predatory?

Answer 5

• Getting into a car with a loaded gun and pointing it at the victim (attempted murder, Jones (1990) 91 Cr App R 351)
• Looking at a padlock with cutting equipment in the hedge (attempted burglary, Tosti [1997] Crim LR 746)

Question 6

Is recklessness enough for an inchoate offence?

Answer 6

No, proof of intention is required

Question 7

Is conditional intention enough for the MR of inchoate offences?

Answer 7

Yes

Question 8

Is oblique intent enough for the MR of inchoate offences?

Answer 8

Yes, if D saw the result as a virtual certainty

Question 9

Can an inchoate offence be committed when the crime is non-existent (accused believes that what they are doing is an offence, whereas it is in fact lawful)?

Answer 9

No

Question 10

Can an inchoate offence be committed when there is impossibility through inadequacy (Impossibility through inadequacy arises where the crime itself is perfectly feasible, but the defendants adopt, or seek to adopt, a method that cannot work)?

Answer 10

Yes

Question 11

Can an inchoate offence be committed when there is impossibility in fact (they cannot commit the offence they thought they could/did)?

e.g. if D stabs V, but V is already dead,

Answer 11

Yes

if D stabs V, but V is already dead, then D will be liable for attempted murder.

Question 12

What is the mens rea for attempted murder?

Answer 12

Intention to kill

Question 13

Kevin breaks into a garage that his next door neighbour uses and steals a bicycle. When Kevin’s solicitor investigates the ownership of the garage, he finds that the neighbour has built the garage on land owned by Kevin. He has been charged with attempted burglary. Kevin has broken onto his own land.

Which of the three types of impossibility would be relevant here?

Answer 13

Impossible in fact

Question 14

Donna is fed up with her husband Tim. She tells her sister Ursula that she wants to kill him. Ursula lends Donna a gun that Ursula bought the previous week. Donna produces the gun that night whilst Tim is in bed and pulls the trigger. Unknown to either Donna or Ursula, the gun is a replica which is unable to fire. Donna is charged with attempted murder.

Which of the three types of impossibility would be relevant here?

Answer 14

Impossibility through inadequacy

Question 15

A woman goes into a department store intending to take a bottle of perfume and leave without paying for it. The woman reaches for the bottle of perfume, ready to take it but then sees a security guard and pulls her hand back.

Which one of the following best describes the offence she may be criminally liable for?

Attempted theft

Robbery

The woman will not be criminally liable for any offence

Criminal damage

Theft

Answer 15

Attempted theft

This is the correct answer. The woman aims to dishonestly take the perfume belonging to the department store permanently. The only element that is missing is her appropriation (taking or even touching) of the perfume. It doesn’t matter that the department store consents to customers taking perfume bottles off the shelves generally, as appropriation can occur even with the consent of the department store (Gomez). The woman reaching for the perfume is likely to go beyond mere preparation and she will be considered to have embarked on the crime proper, like Tosti (examining a padlock) and **Jones **(in the car).
The other options while plausible were incorrect:
- She could be criminally liable for attempted theft.
- The woman has not yet completed the theft which would take place at the point that she appropriates the perfume bottle.
- As there is no theft here, so there can be no robbery.
- There has been no destruction or damage of property, so there can be no criminal damage.

Question 16

A woman tells her friend that her boyfriend has been having affairs with other women and that, in revenge, she is going to his house that night to scratch the paintwork on his new car. The friend says ‘He deserves it. Go for it!’ The woman makes several prominent scratches on the car.

What is the friend’s liability as a secondary party to this criminal damage?

She has counselled the woman to commit criminal damage and is liable as a secondary party

She is not liable as a secondary party as the friend would have committed the criminal damage in any event

She has abetted the woman to commit criminal damage and is liable as a secondary party

She has procured criminal damage and is liable as a secondary party

She has aided the woman to commit criminal damage and is liable as a secondary party

Answer 16

She has counselled the woman to commit criminal damage and is liable as a secondary party

Correct. Counselling is giving advice or encouragement before the commission of the offence. There has been contact between the parties and a connection between the counselling and the offence, although it does not have to be shown that the friend’s words have had a positive effect on the woman’s conduct, see R vCalhaem.
The other options are incorrect or not the best answer.
She is criminally liable as has counselled the woman- there is no requirement for any causal link between the friend’s words and the woman’s commission of the offence here.
Abetting is incitement or encouragement at the time the offence is committed but this happens before the offence is committed. To procure is to produce by endeavour, that is to bring about the woman’s commission of the offence. The friend cannot be said to have caused the woman to commit the criminal damage here. To aid is to give assistance in the commission of the offence. On the facts the friend has not given the woman any assistance e.g. the location of the car or a method to scratch it.

Question 17

Two boys were throwing large stones at the windows of a disused factory. The victim heard the noise of breaking glass and ran towards the boys yelling at them to stop. Both boys laughed and each picked up another stone and threw it in the direction of the victim. One of these stones hit the victim who suffered a fractured skull. Each boy denied it was their stone which hit the victim.

Can the boys be convicted of s 20 Offences Against the Person Act 1861?

Both boys can be convicted as they were joint principals taking part in a joint enterprise

Neither boy can be convicted as it cannot be proved which one was the principal offender that threw the stone which hit the victim

Neither boy could be convicted as they merely threw stones in the direction of the victim, not at the victim

Both boys can be convicted as they were taking part in a joint enterprise and each one was either the principal or a secondary party

Neither boy can be convicted as the joint enterprise was to do criminal damage

Answer 17

Both boys can be convicted as they were taking part in a joint enterprise and each one was either the principal or a secondary party

Correct. The general rule is if it cannot be proved which of two people committed the crime, both must be acquitted. However, if it can be proved that the one who did not commit the crime as the principal was a secondary party to the crime, then both can be convicted, R v Russell and Russell. Here the boy whose stone did not hit the victim was a secondary party. The boys were on a joint enterprise to damage the property. The s 20 OAPA 1861 offence arose from that joint enterprise and they each would have known that the other would act with the mens rea for s 20 i.e. have seen the risk of causing some harm to a person.
The other options are incorrect.
Where two or more parties are committing a crime together as part of a joint enterprise and one party goes on to commit another crime, the other party is not to be considered automatically as a joint principal for the new offence.
Where two or more parties are committing a crime together (in a joint enterprise), but one party goes on to commit another crime, it is not necessary to show that the other party aided or encouraged the new crime. It is sufficient that the other party was a party to the joint enterprise and had the relevant mens rea for an accessory.

Question 18

A woman hates her neighbour who is a drug dealer. One day, the woman returns home and sees her neighbour doing repairs to his car at the front of his house. Shortly afterwards, she looks out of a window facing over the gardens at the back of the houses and sees a figure squeezing through a window into the neighbour’s house. She goes to the front of the house and sees her neighbour is about to go into his house. She goes outside and engages him in conversation for 10 minutes to give the intruder more time. The intruder leaves the house with several thousand pounds in cash.

Which of the following best describes the woman’s liability for burglary?

She will not be a secondary party as the burglary occurred when the intruder entered the house which was before her act of assistance

She will be a secondary party to a s 9(1)(a) burglary as she has aided in the intruder’s commission of the offence

She will not be a secondary party to the burglary as there is no causal link between her assistance and the offence

She will be a secondary party to a s 9(1)(b) burglary as she has aided in the intruder’s commission of the offence

She will not be a secondary party to the burglary as the intruder was unaware that they were being aided

Answer 18

She will be a secondary party to a s 9(1)(b) burglary as she has aided in the intruder’s commission of the offence

Correct. To aid is to give assistance, help or support to the principal party in carrying out the offence at any stage before or during the commission of the offence. It is not necessary to show a causal link between the assistance and the commission of the offence or a consensus between the secondary party and the principal. When she gave assistance, the intruder may have already appropriated the cash. However, it was held in R v Hale that appropriation is not an instantaneous act. It was also held that a jury is likely to find the act is still continuing while the intruder is on the premises. So, the appropriation (theft) is still continuing, and the s 9(1)(b) Theft Act 1968 burglary is still continuing. There is no need for the intruder to know of the assistance and there is no need for the assistance to cause the burglary.

Question 19

A man was the lawful owner of several handguns. The man’s brother was always complaining about his neighbour whose dogs bark all night. The brother frequently said his life was intolerable and one day he would have to do something about the dogs or his neighbour. Last month the brother asked to borrow a handgun, saying, ‘I will use it just once and this will transform my life.’ The brother used it to shoot dead his girlfriend’s husband (the victim) and was convicted of murder.

Which of the following best explains the man’s liability as a secondary party to the murder?

The man will be liable if he knew his brother would use the gun for some unlawful purpose

The man will not be liable if he did not foresee that his brother might kill or cause serious harm to the victim

The man will not be liable if he did not foresee that his brother might kill the victim

The man will be liable if he thought his brother might use the gun to either kill the dogs or kill his neighbour

The man will be liable because he caused the death of the victim, without his gun the murder would not have taken place

Answer 19

The man will be liable if he thought his brother might use the gun to either kill the dogs or kill his neighbour

Correct. It is enough if the man assisted his brother in committing one of a number offences he had in contemplation, DPP for Northern Ireland v Maxwell. If the man envisaged his brother killing someone with the mens rea for murder, it does not matter if he does not know the details such as the victim or the day it would take place, R v Bainbridge.
The mental element in assisting or encouraging a crime is intention to assist or encourage. This requires knowledge of any existing facts necessary for it to be criminal and if the crime requires a particular intent, the man must intend to assist or encourage his brother to act with such intent.
The other options are incorrect.
· The man will be liable because he caused the death of the victim, without his gun the murder would not have taken place- it is not necessary to show there is a causal link between the assistance given by the man and the commission of the offence by his brother. Even if such a link can be established, it is not enough to assist in the murder committed by his brother. To be liable, the man must also have the relevant mens rea.
· The man will be liable if he knew his brother would use the gun for some unlawful purpose- this mens rea is not specific enough.
· The man will not be liable if he did not foresee that his brother might kill or cause serious harm to the victim- if the man intends to give his brother the means to commit a crime but it remains unclear what his brother might do, the man may be liable for the offence committed by his brother if he intends his brother to act with the relevant mens rea.

Question 20

Question 1
A man plans to carry out a robbery of a post office, but the police are tipped off and are
lying in wait for him. In preparation, the man has located a post office to rob, obtained an
imitation firearm, written a demand note which is in his pocket, been seen loitering outside
the post office wearing sunglasses and carrying a heavy object (an imitation firearm),
failed to give any warning about his intended actions and had just entered the post office
when he was stopped and arrested.
Which of the following statements correctly describes whether the man satisfies the
actus reus of attempted robbery?
A The judge would not allow the matter to proceed to the jury as there is insufficient
evidence that the man has moved from the preparatory stages to commit the full
offence of robbery.
B The jury must decide, as a question of fact, whether what the defendant has done is
sufficient for the offence of attempted robbery.
C The jury may take account of all the defendant’s actions and omissions when
determining if he is guilty of attempted robbery.
D The jury is unlikely to conclude that the man satisfies the actus reus for attempted
robbery as he has not completed the final act towards committing the full offence.
E To be guilty of an attempted robbery the man must have embarked on the middle
stages of the crime and the evidence provided suggests that he has.

Answer 20

Answer
Option B is the correct answer as this is the question for the jury to decide. Option A is
wrong because, in a scenario such as this, there is sufficient evidence to allow the matter to
go to the jury. Option C is wrong because the jury cannot take account of the defendant’s
omissions, such as his failure to give any warning, when determining if he is liable for
attempted robbery.
Option D is also wrong. The jury is likely to conclude that the man has moved from the
preparatory stage to the commission stage and the prosecution do not have to wait until he
has completed the final act before the event. The man must have embarked on the ‘crime
proper’ to be guilty of attempted robbery – not the ‘middle stages of the crime’ – hence,
option E is wrong.

Question 21

Question 2
A boy decides to set fire to his school late one afternoon as he is bored and thought it
would be fun to watch the staff run out of the building. He purchases some matches and
lighter fuel and approaches a litter bin that is full of paper. He pours the lighter fuel onto
the paper and strikes a match. However, just as he is about to drop this into the bin, a
teacher sees him and asks what he is doing. The boy panics and drops the match, which
has now been extinguished, onto the floor causing no damage. He runs away but is caught
by the teacher.
Which statement best describes whether the boy satisfies the mens rea for attempted
arson and aggravated arson?
A The boy is liable for both offences because he intended to damage property belonging
to another by fire and intended to endanger life.
B The boy is liable for both offences because he was reckless as to damaging property
belonging to another by fire and reckless as to endangering life.
C The boy is liable for both offences because he intended to damage property belonging
to another by fire and was reckless as to endangering life.
D The boy is liable for attempted arson as he intended to damage property belonging to
another by fire, but he does not satisfy the mens rea for attempted aggravated arson.
E The boy is not liable for either offence as he did not intend nor was he reckless as to
endangering life.

Answer 21

The correct answer is option C. The boy intended to commit arson as he ‘decides to set fire
to his school’ but was reckless as to endangering life (he was aware that staff were still in
the building as he thought it would be fun to watch them run out). Options A and B are not
the best answers because he intended the arson and was reckless as to the endangering
life aspect, rather than intending or being reckless as to both. Option D is wrong because
the boy does satisfy the mens rea for attempted aggravated arson and option E is wrong
as he is criminally liable for both offences

Question 22

Question 3
A woman runs an air freight business, which has been struggling as a result of the downturn
in exports. Her business has cash flow problems and she is worried that it will go into
liquidation. Desperate to raise some cash, the woman plants a bomb on board one of her
planes intending for it to explode while the plane is over the ocean, enabling her to claim
a significant insurance payment. The bomb fails to detonate but is discovered when it lands
at the airport. On closer inspection by the bomb disposal squad, it becomes apparent
that the woman had not armed the bomb properly so it could never have detonated in its
current state.
Is the woman liable for attempted murder?
A No, because the substantive offence of murder could not have been committed as the
bomb could never have detonated.
B No, because planting a bomb is not an act that is more than merely preparatory to
committing the full offence of murder.
C No, because she does not intend to kill those on board the plane.
D Yes, because the woman is reckless as to whether those on board the plane will be
killed.
E Yes, because the woman is judged on her own understanding of the facts and she
thought she had armed the bomb properly so that it would explode over the ocean.

Answer 22

Answer
Option E is correct as the woman’s intention to commit the offence will be based on the
facts as she believed them to be; and therefore she is guilty of attempted murder even
though the full offence of murder was impossible. Option A is wrong as the CAA 1981
provides that the accused may be liable for an attempt even if the crime is factually
impossible.
Option B is wrong because, once she planted the bomb, the woman has clearly passed from
the ‘preparation phase’ to the ‘commission phase’; indeed, there was nothing more she could
do to commit the substantive offence. Option C is also wrong as, although the woman’s direct
intent is for the plane to go down so that she can claim on the insurance, she has an indirect
intent to kill (an intent to cause grievous bodily harm is not sufficient). In other words, even
though the woman may not have desired the death of those on the plane, she must have
foreseen this outcome as a virtual certainty had the bomb gone off over the ocean. This will
be sufficient to fulfil the mens rea.
Option D is wrong because recklessness as to causing the death of those on board the plane
is not sufficient to satisfy the mens rea of an attempted murder.

Question 23

Three types of impossibility?

Answer 23

Impossibility through non-existent crimes (acts as a defence)

Impossibility in fact

Impossibility through inadequacy