Preliminary Offences: Attempt

Preliminary Offences: Attempt

10.1 Definition of Attempt

  • Attempt: An attempt occurs when a person tries to commit an offence but fails to complete it.

    • Example: A defendant fires a gun at a victim intending to kill, but misses due to the victim bending down. Charges: Attempted murder.

  • Case Example: R v White (1910)

    • Facts: Defendant put cyanide in his mother’s drink intending to kill her. She died of a heart attack before drinking it.

    • Outcome: Convicted of attempted murder.

10.1.1 Legal Definition

  • According to s 1(1) of the 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."

  • Key Points:

    • Charges for attempts can only be brought for offences triable on indictment (including either-way offences).

    • Offences triable summarily only cannot lead to an attempt charge.

Elements of Attempt

  • Actus Reus: An act that goes beyond merely preparatory to the commission of the offence.

  • Mens Rea: Intent to commit that offence.

10.2 Actus Reus of Attempt

  • The act must be more than mere preparation for the main crime.

    • Example Scenarios:

    • Buying or modifying a weapon is merely preparatory.

    • Planning a robbery is still considered merely preparatory.

Legal Tests

  • Case Reference: R v Campbell (1990)

    • Defendant was outside a bank with items suggesting intent to rob but was found not guilty due to being merely preparatory.

  • Requirement of Change:

    • Attorney-General's Reference (No. 1 of 1992) clarified that the defendant does not need to perform the last act before the crime or reach a point of no return.

Cases Showing Mere Preparation

  • R v Gullefer (1987): Disrupted a horse race intending to reclaim a lost bet. Held to be merely preparatory due to additional steps required.

  • R v Geddes (1996): Found in a school with items for false imprisonment without approaching a victim. Conviction quashed as it was merely preparatory.

  • R v Campbell (1990): Possessed an imitation gun but did not enter the post office. Conviction quashed.

Cases with Established Attempts

  • R v Boyle and Boyle (1987): Attempting burglary upheld as the defendants were found at a broken entry point to a building.

  • R v Tosti (1997): Held guilty of attempted burglary for preparing to cut a padlock, showing intent and operational action.

  • R v Jones (1990): Defendant attempted murder with a shotgun inside a vehicle with intent established despite safety measures. Convicted.

10.3 Mens Rea of Attempt

  • Intent Requirement: The defendant must show the same level of intent as required for the complete offence.

    • Case Example: R v Easom (1971): Handbag was returned without stealing; attempted theft conviction quashed due to lack of intent.

    • Case Example: R v Husseyn (1977): Attempted theft of equipment ended in quash against conviction; intent was not proven.

Conditional Intention

  • Attorney-General's Reference (Nos 1 and 2 of 1979): Established that conditional intent is sufficient. D can be charged under conditions where D intends to steal if there is something worth stealing.

Mens Rea of Attempted Murder

  • Higher Requirement: Intent to kill must be proven; intent to cause grievous bodily harm is insufficient.

    • Case Example: R v Whybrow (1951): Defined the mens rea for attempted murder as needing an intention to kill.

Recklessness Not Sufficient

  • Recklessness generally does not suffice for mens rea in attempts despite being acceptable in completed offences.

    • Case Example: R v Millard and Vernon (1987): Attempted criminal damage conviction quashed; recklessness not sufficient.

    • Notable Exception: Recklessness about specific parts of the offence may meet the criterion.

    • Attorney-General's Reference (No. 3 of 1992) (1994): Recklessness can suffice for endangering life.

10.4 Impossibility

  • Understanding Impossibility: Impossibility can arise where the defendant believes they can commit an offence that is legally or physically impossible.

    • Case Example: Anderton v Ryan (1985): Quashed conviction for believing a non-stolen item was stolen.

    • Case Overruled: R v Shivpuri (1986): Conviction upheld despite the suitcase carrying no drugs; highlights the shifting legal stance on impossibility.

    • Clauses in the Criminal Attempts Act 1981, particularly ss 1(2) and 1(3), clarify that guilty attempts can occur even if full offences are impossible.

Key Points About Attempted Offences

  • The law has drawn a fine line on what constitutes 'merely preparatory' versus an attempt.

  • An omission cannot constitute an attempt.

  • Summary Points:

    • Attempt is defined under s 1(1) of the Criminal Attempts Act 1981.

    • Clear tests exist for actus reus and mens rea.

    • Recklessness typically falls short unless concerning specific elements.

    • Impossibility does not automatically exempt from liability for attempt, per established cases and legal standards.