Attempts (preliminary offences)

Application

if you are faced with a scenario that includes an element of attempting an impossible crime you should explain the law on that area and make it clear that the D can still be liable for the attempted crime even though it is impossible to commit THEN go to the usual rules on attempts.

Statute

The law on attempts comes from the Criminal Attempts Act 1981

Attempting an impossible crime

• factually (physically) impossible

• Legally impossible

• No offence

Factually impossible

Section 1(2)

• Can be guilty of attempting to commit an offence even though the facts are such that it makes the commission of an offence impossible.

• This could include stabbing an already dead person or trying to steal a purse from an empty bag.

Section 1(2)

Factually impossible

Legally impossible

Section 1(3)

• This would occur if the D was mistaken to the facts and if they were what they believed them to be they would have committed an offence

• Anderton v Ryan – mistakenly believed she was handling stolen goods so liable for attempt

• Shivpuri – mistakenly believed suitcase contained cannabis leaves but is was cabbage

Section 1(3)

Legally impossible

Anderton v Ryan

mistakenly believed she was handling stolen goods so liable for attempt

Shivpuri

mistakenly believed suitcase contained cannabis leaves but is was cabbage

No offence

If the crime is impossible because there is no such offence the D cannot be guilty of attempting it, Taffe

Taffe

If the crime is impossible because there is no such offence the D cannot be guilty of attempting it

Definition

An attempt is where a person tries to commit an offence but for some reason fails to complete it

It is defined in section 1(1) Criminal Attempts Act 1981

Definition

section 1(1) Criminal Attempts Act 1981

Actus reus

A person does an act which is more than merely preparatory to the commission of an offence

• Attempts don’t apply to crimes committed by omission

• Phrase more than merely preparatory is for the jury to decide

• Gullefer – attempt begins when the merely preparatory acts come to an end and the D embarks on the crime proper

• Geddes, Campbell – has the accused moved from planning or preparation to execution and implementation

• The point an act becomes more than merely preparatory would be different for attempted burglary, Tosti.

Gullefer

attempt begins when the merely preparatory acts come to an end and the D embarks on the crime proper

Geddes

has the accused moved from planning or preparation to execution and implementation

Tosti

The point an act becomes more than merely preparatory would be different for attempted burglary.

Mens rea

The D must have the same intention that is required for the full offence.

• Recklessness is not enough for an attempt, Millard and Vernon

• The only exception is of the crime has a two part mens rea, like criminal damage with arson, and the D would only need intention for the first part of the mens rea. Attorney General Ref (No3 of 1992)(1994).

• Conditional intent – If D doesn’t have intention to steal a particular item but plan to steal anything of value that they find can be guilty of attempt as will have intention to steal some or all of the contents of the bag Attorney General Refs (No1 and 2 of 1979)

• Attempted murder – Mens rea for attempted murder is different as D has to have the express intention to kill. Implied intention is NOT enough. Whybrow

• Indirect intention to kill is sufficient mens rea, Walker and Hayles

Millard and Vernon

Recklessness is not enough for an attempt

Attorney General Ref (No3 of 1992)(1994).

The only exception is of the crime has a two part mens rea, like criminal damage with arson, and the D would only need intention for the first part of the mens rea.

Attorney General Refs (No1 and 2 of 1979)

Conditional intent – If D doesn’t have intention to steal a particular item but plan to steal anything of value that they find can be guilty of attempt as will have intention to steal some or all of the contents of the bag

Whybrow

Attempted murder – Mens rea for attempted murder is different as D has to have the express intention to kill. Implied intention is NOT enough.

Walker and Hayles

Indirect intention to kill is sufficient mens rea