Preliminary Offences: Attempts Flashcards
What is the approach on attempted impossible defences?
There are some offences that somebody might begin to commit, but actually the defence in itself is impossible to commit, but they don’t know that (e.g. Trying to kill Keshav but he’s already dead)
Legal definition of an attempt
When the defendant has tried and failed to commit an offence, it is still right and proper that even though the offence was not actually committed, they should still be criminally liable. E.g. attempted murder in R v White (1910).
Definition is statutory. S 1(1) Criminal Attempts Act 1981 – “If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence”.
“More than merely preparatory” in Actus Reus of Attempts
If D has prepared or laying the groundwork to committing an offence (e.g. buying a gun, planning a getaway), this in itself is not sufficient to charge with an attempted offence. However, and here’s the key, once D begins the attempt (that point will be determined by the case), they can then be prosecuted with an offence.
The actus reus of attempts
Attorney-General’s Reference (No.1 of 1992)(1993) stated that D had gone far enough before the last act in order for his offence to be judged as more than merely preparatory.
• In R v Gullefer (1987), D’s actions were just preparatory therefore he was not guilty of attempting to steal.
• The C of A stated that the preparatory acts had to have come to an end and the defendant had to have embarked on the crime proper.
• R v Geddes (1996) at first appears silly because D clearly appears to have gone beyond preparation, but the C of A asked these two questions: 1. had the accused moved from planning and preparation to execution or implementation and 2., had the accused done an act to show that was attempting or equipping himself to commit the offence?
• If we use these two questions, D hadn’t quite got that far, but it could be argued that he WAS putting himself in that position.
• R v Campbell (1990) also seems hard to justify.
Attorney General’s Reference (1992)(1993) (Attempts)
D must have actually started to commit the offence. By dragging the girl up the steps, it is still not clear what he was going to do.
Cases where D had gone beyond mere preparation (Attempts)
Boyle and Boyle (1987) - Trying to gain entry to a building is attempted burglary
Tosti (1997) - He is examining the padlock with cutters hidden in the hedge nearby
Jones (1990) - Enters the car and point the gun
Mens rea of attempts
• If the prosecution cannot prove that D had the intention, then D is not guilty of the attempt – R v Easom (1971).
• R v Husseyn (1977) is a similar case.
• The problems flowing from these cases were resolved in Attorney- General’s Reference (Nos 1 and 2 of 1979)(1979) when the C of A decided that if the conditional intent (if there was anything worth stealing) was there, then D could be charged with attempt.
• Easom would nowadays be charged with attempting to steal some or all of the contents of the bag, rather than the bag itself and specific items in it and Husseyn would also be charged with attempted theft.
Mens rea of attempted murder and whether recklessness is enough for the mens rea
• There is a higher level of intention for attempted murder than for murder itself.
• In murder, the prosecution needs to prove either intention to kill OR intention to cause grievous bodily harm.
• For attempted murder, the intention to cause grievous bodily harm is not enough, specific intention to murder is required – R v Whybrow (1951).
• In other more general attempts, recklessness is not sufficient – R v Millard and Vernon (1987).
•If however recklessness is one part of the offence, then it can be sufficient – Attorney-General’s Reference (No.3 of 1992) (1994).
R v Whybrow (attempted murder)
There must be evidence of a specific intent to kill
Millard and Vernon (attempt)
Recklessness is not enough to prove an attempt because D could argue that they had no intention to do what they were being accused of attempting to do.
Attempts of Impossible offences
• If a person has attempted to commit what they thought was an offence but which actually wasn’t, then they may or may not be guilty of an attempt.
• The Criminal Attempts Act 1981 has attempted to clarify this.
• In s 1(2) it states that a person may be guilty of attempting to commit an offence even though the facts are such that make the commission of the offence impossible.
• In Anderton v Ryan (1985), the H of L’s held that even though Mrs Ryan had believed a video recorder she had bought cheaply, was stolen, she was not guilty under s 1(2) because the item was not in fact stolen.
• This H of L’s overruled this decision using the Practice Statement a year later in R v Shivpuri (1986). This time the H of L’s stated that s 1(2) and s 1(3) were a combined effect. S 1(3) states that if facts of the case were as the person believed them to be, that he shall be regarded as having an intent to commit that offence.
Criminal attempts act 1981
If D believes that they are committing an offence, or they are intending to commit an offence, it is irrelevant whether that defence is impossible to commit or not
