Attempts to commit an offence

Question 1

What is the statute and section relating to the definition of attempts?

Answer 1

Section 72, CA 1961

Question 2

Is Sec 72, CA 1961 an offence?

Answer 2

Sec 72 does not create an offence of ‘attempt’. It is simply a definition of attempt that applies to all offences. Punishment for attempts can be found under several provisions in CA 1961

Question 3

What does Sec 72(1), CA 1961 state?

Answer 3

Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not

Question 4

What are the elements of attempt?

Answer 4

Intent (mens rea): To commit an offence

Act (actus reus): That they did, or omitted to do, something to achieve that end

Proximity: That their act or omission was sufficiently close

The suspect behaviour must satisfy all three conditions, at a minimum, to constitute an attempt.

Additionally there is the requirement that it must be legally possible to commit the offence, in the circumstances. A person can be convicted of an offence that was physically impossible to commit.

Question 5

What intent must be proven?

Answer 5

When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence.

Question 6

How is intent inferred?

Answer 6

The intent of the offender(s) may be inferred from the act itself (what they did) and/or proved by admissions or confessions (what they said).

Question 7

What is the case law relating to inferring intent from the act?

Answer 7

R v Ring
In this case the offender’s intent was to steal property by putting his hand into the pocket of the victim. Unbeknown to the offender the pocket was empty. Despite this he was able to be convicted of attempted theft, because the intent was to steal whatever property might have been discovered inside the pocket was present in his mind and demonstrated by his actions. The remaining elements were also satisfied.

Question 8

Explain “question of fact” in relation to intent

Answer 8

Whether that intent exists or not is a question of fact; a question that the jury decides

Question 9

Define act and omission

Answer 9

Act: To take action or do something, to bring about a particular result.

Omission: The action of excluding or leaving out someone or something, a failure to fulfil a moral or legal obligation.

The purpose of the act or omission must be so that the offence can be facilitated

Question 10

Explain “sufficiently proximate”

Answer 10

Sec 72(3) CA 1961 outlines that the accused must have done or omitted to do some act(s) that is/are sufficiently proximate (close) to the full offence. Effectively, the accused must have started to commit the full offence and have gone beyond the phase of mere preparation- this is the “all but” rule.

Question 11

Explain “several acts” in relation to an attempt

Answer 11

Independent acts, when viewed in isolation, can be construed as preparatory. When the same acts are viewed collectively, they can take on a different context and therefore amount to a criminal attempt.

Question 12

What is the case law relating to cumulative acts?

Answer 12

R v Harpur
The Court may have regard to the conduct viewed cumulatively up to the point when the conduct in question stops… the defendant’s conduct may be considered in its entirety. Considering how much remains to be done … is always relevant, though not determinative.

Question 13

What is the test for proximity?

Answer 13

• Has the offender done anything more that getting himself into a position from which he could embark on an actual attempt? Or
• Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself

If the answer to either is “yes” then there has been an attempt.

Proximity is a question of law = decided by Judge or Jury

Question 14

Explain “impossibility” in relation to attempts

Answer 14

A person can be convicted of an offence that was physically impossible to commit, but cannot be convicted of an offence that was legally impossible to commit.

Question 15

What are the case laws relating to impossibility?

Answer 15

R v Ring
Higgins v Police
Where plants being cultivated as cannabis are not in fact cannabis it is physically, not legally, impossible to cultivate such prohibited plants. Accordingly, it is possible to commit the offence of attempting to cultivate cannabis.

Police v Jay
A man bought hedge clippings believing they were cannabis.

Question 16

Explain when an act is legally impossible

Answer 16

Where the completed act is legally impossible (that is, where the completed act would not be an offence) the suspect cannot be convicted of an attempt, even where they may have had criminal intent.

The suspect may believe that the completed act is illegal, but be mistaken in their belief that the completed act is illegal. There must be an attempt to commit an actual offence.

Question 17

What is the case law relating to legally impossible acts?

Answer 17

R v Donnelly
Where stolen property has been returned to the owner or legal title to any such property has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen or dishonestly obtained.

(stolen suitcase, returned, attempt to uplift)

Question 18

When is an attempt complete?

Answer 18

An attempt is complete even when the defendant changes their mind or makes a voluntary withdrawal after completing an act that is sufficiently proximate to the intended offence

Question 19

What are some circumstances which DO NOT create a defence?

Answer 19

The defendant has no defence that they:
• Were prevented by some outside agent from doing something that was necessary to complete the offence; eg interruption from police
• Failed to complete the full offence due to ineptitude, inefficiency or insufficient means; eg insufficient explosive to blow apart a safe
• Were prevented from committing the offence because an intervening event made it physically impossible; eg removal of property before intended theft

Question 20

Can someone attempt to commit an attempt?

Answer 20

There is no such thing as an attempt to commit an attempt, though as a general principle, an attempt to commit an offence is in itself an offence.

Question 21

What are the functions of the judge and jury?

Answer 21

The judge must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence.

The defendant need not have taken all steps necessary towards completing the full offence.

If the judge decides that the defendant’s actions were more than mere preparation, the case goes to the jury.

The jury must then decide whether the facts presented by the Crown have been proved beyond reasonable doubt and, if so, must next decide whether the defendant’s acts are close enough to the full offence.

If the jury finds that the actus reus has been established, it must also find the same in respect of the mens rea- that is, the prosecution’s evidence must also convince the jury beyond reasonable doubt that the defendant intended to commit the full offence.

Question 22

When are you unable to charge with attempt?

Answer 22

You are unable to charge where:
• The criminality depends on recklessness or negligence, eg manslaughter
• An attempt to commit an offence is included within the definition of that offence, eg assault
• The offence is such that the act has to have been completed in order for the offence to exist at all, eg demands with menace.

Question 23

Explain the filing of charges relating to an attempt

Answer 23

Where a defendant is charged with the full offence, but is found guilty only of the attempt, they can be convicted of the attempt (s149 Criminal Procedure Act 2011).

Where a defendant is charged with an attempt, yet the full offence is proved, the defendant can only be convicted of the attempt (s150 CPA 2011).

Question 24

What is the punishment for attempt?

Answer 24

Several provisions provide for express penalties for attempts to commit specific offences.

Where no punishment is expressly provided, the penalty section to be applied is s311(1) CA 1961
(10 years if max punishment is life, in any other case not more than half the punishment)