Week 20 Criminal: Attempts

what are inchoate offences in criminal law?

offences where D is criminalised for incomplete or preparatory acts towards a principal offence. Includes attempt, conspiracy and assisting/encouraging.

give examples of statutory and general inchoate offences.

• statutory : e.g. Fraud Act 2006 ss.2-5 (no need for actual gain/loss)

• general:

• conspiracy

• assisting or encouraging

• attempt (focus of LW104)

how is an attempt defined in s.1(1) Criminal Attempts Act 1981?

D is guilty if, with intent to commit an offence, they do an act more than merely preparatory to its commission.

what are the two core elements of attempt?

• Actus Reus: an act more than merely preparatory

• Mens Rea: intent to commit the full offence (not recklessness)

why do we criminalise attempts?

• protection of society (early intervention)

• fairness to D (line between planning vs criminal attempt)

what does “more than merely preparatory” mean?

D must go beyond planning or preparation and begin executing the offence.

Case Law Highlights:

• R v Gullefer - AR starts when D embarks on the crime proper

• R v Geddes - waiting in toilet with equipment doesnt equal attempt

• R v Tost - examining lock with tools nearby = attempt

• R v Jones - Loaded gun aimed at V = attempt

can an attempt be committed by omission?

generally no, but some argue it should be possible where D has a legal duty to act (e.g. starving child case, see Child & Ormerod and LC Report No. 318)

what offences can’t be attempted?

• summary-only offences (e.g. battery)

• conspiracy (already inchoate)

• accessory liability (e.g. aiding and abetting)

is D guilty if the offence was impossible to commit?

yes, if factually impossible (s.1(2) CAA)

No, if legally impossible (e.g. trying to commit a non-existent crime)

Case Law:

• R v Shivpuri - guilty of attempting to deal drugs even though it was a vegetable matter

• R v Taaffe - believed importing cash was illegal (wasn’t) → not guilty

what mens rea is required for attempt?

• intent to commit the offence

• must intend all conduct/result elements

• conditional intent suffices (AG Ref (Nos 1 & 2 of 1979)

what is required for attempted murder?

• intention to kill only (Whybrow)

• intent to cause GBH is not sufficient

what MR is needed for attempted criminal damage?

• intent to cause damage

• recklessness (as in principal offence) not enough for attempt

what did Khan [1990] decide about MR in attempts?

D must intend conduct/result but can be reckless as to circumstance elements (e.g. consent in rape)

how does Pace [2014] conflict with Khan [1990]?

• Pace : D must intend every AR element, even circumstances (e.g. knowing metal was stolen)

• Khan : recklessness is enough for circumstance elements (e.g. consent)

how to apply Khan vs Pace in problem questions ?

• possible offence → Khan applies (intent + recklessness for circumstances)

• impossible offence → Pace applies (intent for all elements)

whats the academic view on Khan vs Pace?

• Child & Ormerod : views are irreconcilable

• Dyson [2014] : Pace aligns better with statute, but khan better policy

• Child & Hunt: Khan should be discarded - charge lesser offence if needed

what is the current state of MR in attempt offences?

• intent required for all conduct/result elements

• circumstance MR:

• Khan : recklessness enough (possible attempts)

• Pace: must intend (impossible attempts)