Is the law on attempts satisfactory? Flashcards
What have the courts not made very clear in attempts?
in deciding the dividing line between what is ‘merely preparatory’ and what is an attempt
socially was is a problem with the law on attempts?
some of the decision in this area are not effective for protecting the public
What does the wording of the Criminal Attempts Act state that defendants must do to be guilty of an attempt?
they must do an act which is more than merely preparatory
What does the wording of the Criminal Attempts Act mean when it states that defendants must do an act which is more than merely preparatory to be guilty of an attempt?
This means that an attempt cannot be committed by an omission
What can be confusing about the definition of attempts which states that D must act ‘with intent to commit an offence’?
Does this mean that only direct intention is sufficient for the mens rea of attempt?
What did the early decisions of mens rea leave?
a loophole where D could intend to steal if he could find anything worth stealing (easom 1971)
Which 3 cases show that the courts are not always prepared to take a broad approach when deciding what is ‘more than merely preparatory’
Gullefer 1987
Geddes 1996
Campbell 1990
The cases Gullefer 1987, Geddes 1996, Campbell 1990 show that the courts are not always prepared to take a broad approach when deciding what is ‘more than merely preparatory,’ what does this make difficult?
this makes it difficult to know exactly what conduct will be considered more than merely preparatory as all convictions were quashed
Why can the ‘more than merely preparatory’ test be argued to be an improvement on the law?
this is because as it stood proper to the passing of the Criminal Attempts Act 1981, the old law used a variety of different tests so that it was not easy to predict which test would be used in any given case.
What was the ‘more than merely preparatory’ test helped to do?
it has helped to clarify and simplify the law
How does the ‘more than merely preparatory’ test made it easier for juries to apply the law?
as they can use their common sense in deciding if the things the defendant did were ‘more than merely preparatory’.
What did the Law Commission in 2007 suggest about ‘more than merely preparatory’ test?
that the law should be reformed to have two offences instead of just attempt.
- Criminal attempt
- criminal preparation
What did the Law Commission in its 2007 consultation paper propose the criminal attempt would be?
that this would be limited to situations where D did the last act before the full offence would be committed
What did the Law Commission in its 2007 Consultation paper proper the criminal preparation would be?
this would be where D engaged in conduct preparatory to committing the full offence. Cases of Gullefer, geddes and Campbell would come into this category
following consultation of the 2007 proposal what did the law commission find?
that judges and lawyers were not in favour of having two offences
What is the main justification for making someone criminally liable?
as this can prevent the full offence from being committed.
The decisions in which 2 cases in particular are hard to reconcile with the protection of the public?
geddes 1996 and Campell 1990
What does the wording of the Criminal Attempts Act 1981 mean in terms of the offence?
that it can only be committed by an act, not an omission
What did the Law Commission point out in Consultation Paper No 183 2007?
that if D deliberately starves his or her baby to death, this is murder even though the death is achieved through ‘doing nothing’ rather than by a positive act of killing. However under the wording of the act, D would not be charged with murder.
In what year did the Law Commission recommend that the Criminal Attempts Act 1981 be amended in order to remedy to gap that omissions can’t constitute attempts?
2009
What section of the Criminal Attempts Act 1981 defines attempts?
s.1
What phrase does s1 of the Criminal Attempts Act 1981 use to define attempts?
‘with intent to commit an offence’
In s.1 of the Criminal Attempts Act 1981 what does the phrase ‘with intent to commit an offence’ not make clear?
it does not make clear whether ‘intent’ should mean only ‘direct’ intent or whether it includes both direct and indirect intent; (whether foresight of consequences by D is sufficient for the mens rea of attempt)
Have the courts generally taken the view that ‘intent’ does or does not also include foresight of consequences?
does
Why did the Law Commission not recommend any alterations to the law in regards to the mens rea required for attempt?
as the broad approach taken by the courts is working
What is the main reason for not giving a full definition of ‘intent’
as no other offence has a statutory definition of ‘intent’
What is the issue with the level of mens rea in relation to attempt?
a higher level of mens rea is required for an attempt of some offences than is required for the full offence
In the offence of murder how can the mens rea be proved?
by showing either that D intended to kill or that he intended to cause really serious harm
How can the law be seen to be more favourable to those who are charged with attempted murder than those charged with the full offence?
as there is a required higher level of mens rea
Under what section and act can someone be charged with when attempting to commit GBH so that a person cannot escape liability completely ?
s.18 of the Offences Against the Person Act 1861
There is a discrepancy in the law in that _____________ is not usually sufficient for the mens rea of an attempt even though it is sufficient for the full offence.
recklessness
in Millard and Vernon 1987 if they were found guilty through recklessness, why might this have been unfair?
as they would have been found guilty even though they had not formed any mens rea.
Why would it be a problem for the defendants in Millard and Vernon 1987 to be found guilty through recklessness even though they had not formed any mens rea?
as the key principle of criminal law is that a person should not be guilty unless they have a guilty mind
What is conditional intent?
this is where D intends to commit an offence only if certain conditions are satisfied
In the case of Husseyn 1977 what did conditional intent mean?
this meant that D may not be found not guilty of attempt
What does the Law Commission propose the definition of Attempt in the Criminal Attempts Act 1981 should be amended to include?
to include that an intent to commit an offence includes a conditional attempt to commit it.
Why do some people argue that a defendant should not be criminally liable for his intentions?
as he must do something toward the commission of the full offence
What does the view that a defendant should not be criminally liable for his intentions conflict with?
parliaments diocesan in imposing guilt in situations of impossibility
Why can it be argued that it is in the publics interest to be able to convict someone like Shivpuri 1986?
as drug dealing causes society many problems
