Chapter 14 - Attempts

Question 1

What is an inchoate offense?

Answer 1

An inchoate offense is an offense that is incomplete in some way. Attempt is an example of an inchoate offense.

Question 2

What are the two types of attempts?

Answer 2

The two types of attempts are incomplete attempts, where the defendant has not done all the acts necessary for the offense, and complete attempts, where the defendant has done everything but the desired result did not occur.

Question 3

What is an example of a complete attempt?

Answer 3

A defendant laces their victim’s drink with poison intending to kill them, but the victim spills the drink and survives. The defendant has completed all the acts necessary for the offense, but the victim did not die.

Question 4

What is the actus reus of an attempt?

Answer 4

The actus reus of an attempt is an act by the defendant that is more than merely preparatory to the commission of the offense. Omissions are not included in the definition of attempt.

Question 5

Can a defendant be charged with attempted murder if they neglect their child, leading to the child’s death?

Answer 5

No. The parents would be liable for murder, as they had a special relationship and statutory duty towards their daughter. However, if the child survives, they cannot be charged with attempted murder. This is because the actus reus of an attempt requires an act, and the parents’ neglect is an omission.

Question 6

What does Section 1(1) of the Criminal Attempts Act (CAA) 1981 state?

Answer 6

If, with intent to commit an offense, a person does an act which is more than merely preparatory to the commission of the offense, they are guilty of attempting to commit the offense.

Question 7

Which offenses can be the subject of an attempt charge?

Answer 7

Almost all indictable offenses, those capable of being tried in Crown Court, can be the subject of an attempt charge. Section 1(4) of the CAA 1981 specifies certain offenses which cannot be the subject of an attempt charge, such as attempting to be an accomplice.

Question 7

Can summary only offenses be the subject of an attempt charge?

Answer 7

Generally, no. Summary only offenses are excluded by the CAA 1981. Although some statutory summary offenses have an attempt provision, such as attempting to drive a motor vehicle while over the prescribed limit for alcohol.

Question 7

When is an act considered “more than merely preparatory”?

Answer 7

This is a question of fact for the jury, but guidance has been provided by judges. The accused needs to be “on the job,” meaning the merely preparatory acts have ended and the defendant has embarked on the crime proper.

Question 7

Explain the case of R v Gullefer.

Answer 7

The defendant jumped onto a greyhound racetrack to try to get a refund on his bet. His conviction for attempted theft was quashed because his act was merely preparatory. The court said that the defendant needed to be “on the job.”

Question 8

What were the key points from R v Gullefer?

Answer 8

The court ruled the defendant’s actions were merely preparatory because he had not embarked on the crime proper. The judges did not state what he needed to do to be liable, but he had several outstanding steps, such as going to the bookmakers to request a refund.

Question 9

What does the law distinguish between in relation to attempts?

Answer 9

The law distinguishes between acts of preparation, where there will be no liability for attempt, and acts that indicate the defendant is “on the job,” meaning they have embarked on the crime proper. This distinction can occur late in the process.

Question 10

Explain the case of R v Jones.

Answer 10

This case involved attempted murder. The jury had to determine when Jones crossed the line from preparatory acts to embarking on the crime proper. The Court of Appeal held there was enough evidence for the jury to decide if Jones’s act of getting into the victim’s car was more than merely preparatory.

Question 11

Why can determining when an act is more than merely preparatory be difficult for law enforcement agencies?

Answer 11

If the agencies intervene too soon, the defendant may be acquitted. However, if they wait too long, the crime may be committed. Essentially, courts must look at what the defendant has done and what else they need to do to commit the offense.

Question 12

Summarize the three main points to determine for the actus reus of an attempt.

Answer 12

The test is set out in statute: an act, not an omission, is needed that is more than merely preparatory. Case law suggests that significant steps toward the full offense need to be taken, but legally, it is not necessary to establish that the defendant has done everything they intended to do. Whether an act is more than merely preparatory is a question of fact for the jury, if there is evidence the defendant has “embarked on the crime.”

Question 13

What is the mens rea for an attempt?

Answer 13

The defendant must intend to commit the specific offense attempted. If it’s a result crime, they must intend the prohibited result, even if a lesser mens rea would suffice for the full offense.

Question 14

What is the mens rea for attempted murder?

Answer 14

The defendant must have the specific intent to kill. An intent to cause grievous bodily harm is not sufficient. This was illustrated in the case of R v Whybrow, where the defendant wired a soap dish to kill his wife.

Question 15

What types of intent are sufficient for an attempt?

Answer 15

Both direct and indirect intent can be sufficient. The test in R v Woollin applies, meaning foresight of the prohibited result as a virtual certainty is evidence from which the jury may find intention.

Question 16

Explain the case of R v Millard and Vernon.

Answer 16

The defendant was charged with attempted criminal damage. The court held that an intention to commit the offense must be proven, even though recklessness would be sufficient for the full offense of criminal damage.

Question 17

What part does recklessness play in attempts?

Answer 17

The defendant must intend all the consequences of the actus reus, even if recklessness would suffice for the full offense. However, recklessness plays a part in offenses that involve ulterior mens rea.

Question 18

What is ulterior mens rea?

Answer 18

Ulterior mens rea refers to the mental state that goes beyond the actus reus of the offense. For example, in aggravated criminal damage, the actus reus is damaging property, but there is also the ulterior mens rea of intending or being reckless as to whether life would be endangered.

Question 19

Explain the case of Attorney-General’s Reference (No 3 of 1992).

Answer 19

The case involved attempted aggravated criminal damage. The defendant must intend to damage property, but it is sufficient to be reckless as to whether life would be endangered. This is because endangering life is an aspect of the ulterior mens rea and not required for the actus reus.

Question 20

Provide an example where a defendant could be charged with attempted murder or attempted grievous bodily harm.

Answer 20

Larry and Janice get into an argument, and he grabs a knife and cuts her face. Larry could be charged with attempted murder, but intent may be hard to prove. He could also be charged with attempted grievous bodily harm under s 18 of the OAPA 1861.

Question 21

Can a defendant be charged with attempted s 20 assault?

Answer 21

It is unlikely they would be charged. If the prosecution pursues a charge for s 20 assault, they still must establish intent to inflict grievous bodily harm, even though the full offense only requires an intent or recklessness as to some harm. Therefore, there is no advantage in charging a defendant with an attempted s 20 assault.

Question 22

Junaid is found to have a lighter and cloth rag after being seen going toward his ex-partner’s home with a can of petrol. What could he be charged with?

Answer 22

He could be charged with attempted criminal damage by arson and attempted aggravated criminal damage by arson under s 1(1) of the CAA 1981. This assumes the jury finds he has gone beyond the preparation stage.

Question 23

What is the mens rea for attempted aggravated criminal damage by arson?

Answer 23

The prosecution must prove that Junaid intended or was reckless as to endangering life. As Junaid admits to considering the risk that his ex-partner and children may have been home, the mens rea for recklessness is satisfied.

Question 24

Explain the role of recklessness as to circumstances in attempts.

Answer 24

In R v Millard and Vernon, the judge outlined the problems recklessness can cause when presenting arguments to juries. The judge explained the difference between offenses where the actus reus is the result and those where the offense requires an additional circumstance and a state of mind relative to that circumstance.

Question 25

In relation to attempted rape, what must the defendant’s state of mind be?

Answer 25

The defendant must intend sexual intercourse and either know of the lack of consent or be reckless as to the victim’s consent. This was decided in the case of R v Khan.

Question 26

Is conditional intent sufficient for attempts?

Answer 26

Yes. For example, putting a hand in someone’s pocket intending to steal anything “if it is worth stealing” is sufficient mens rea for attempted theft.

Question 27

Summarize the mens rea for attempts.

Answer 27

Generally, the prosecution must prove that the defendant intended the actus reus consequences. If the full offense has ulterior mens rea, recklessness in relation to the ulterior mens rea is sufficient for an attempt. If recklessness as to an existing circumstance is enough for the full offense, this will suffice for an attempt.

Question 28

Does impossibility prevent a defendant from being liable for an attempt?

Answer 28

No. Section 1(2) of the CAA 1981 states that a person can be guilty of attempting an offense, even if it was impossible to commit.

Question 29

Provide some examples of impossibility.

Answer 29

José puts his hand in an empty pocket to steal a purse. Selena tries to break into a safe with a teaspoon. These are examples of impossibility of ends and impossibility of means, respectively.

Question 30

Can you be found guilty of an attempt if the crime you are attempting to commit does not exist?

Answer 30

No. For example, adultery is not a crime, so you cannot be guilty of attempting to commit adultery.

Question 31

What does Section 1(3) of the CAA 1981 state?

Answer 31

If the defendant’s intention would not be considered an intent to commit an offense, but if the facts were as they believed them to be, their intention would be considered an intention to commit the offense, then they are considered to have the intent.

Question 32

Explain the case of R v Shivpuri.

Answer 32

The defendant brought a package into the country that he believed contained drugs but was actually harmless. He was found guilty of attempting to deal with or harbor a controlled drug. This was because he committed the actus reus, and if the facts were as he believed, he would have had the mens rea.

Question 33

Katrina points a gun she believes is loaded at Roya, intending to kill her. Is Katrina guilty of attempted murder?

Answer 33

Yes. Katrina satisfies the actus reus, as her acts are more than merely preparatory. She is judged on the facts as she believed them to be, so she is deemed to have the intent to commit murder.

Question 34

Philip plans to kill Lyra. He waits in an alley with a knife, and Lyra walks toward the alley. Is Philip guilty of attempted murder?

Answer 34

It is debatable whether the actus reus is satisfied. One could argue Philip has only put himself in a position to commit the act. Another argument is that waiting with the weapon for the victim to come into sight is more than merely preparatory. The mens rea is satisfied, so it is up to the jury to decide if the actus reus is satisfied.

Question 35

Would Philip still be liable if Lyra had died of natural causes the day before?

Answer 35

Yes. Philip still intended to kill, and the doctrine of transferred malice applies. The only question is whether his act was more than merely preparatory. The fact the crime is impossible does not matter under the CAA 1981.

Question 36

Sebastian is about to set a textbook on fire when Teresa stops him. The textbook belongs to Teresa, but Sebastian believes it is his. Is he liable for attempted criminal damage?

Answer 36

Sebastian has satisfied the actus reus. However, he does not know or foresee a risk that the book belongs to another, so he lacks the mens rea.

Question 37

Sebastian is about to set a textbook on fire when Teresa stops him. The textbook belongs to Teresa, but Sebastian believes it probably is his. Is he liable for attempted criminal damage?

Answer 37

Sebastian has satisfied the actus reus. Sebastian is aware the book may belong to another, so he has the mens rea for attempt. He intends to damage the property and is reckless as to whether it belongs to another.

Question 38

Sebastian is about to set a textbook on fire when Teresa stops him. The textbook belongs to Sebastian, but he believes it belongs to Teresa. Is he liable for attempted criminal damage?

Answer 38

Sebastian has committed the actus reus. The mens rea is also satisfied, as he intended to damage the book and believed it belonged to another. Impossibility is not a defense to attempt, so the fact he was wrong about the book’s owner is irrelevant.