Rabea Ashraf

Inchoate Offences and Attempt

Inchoate Offences and Attempt

1. Inchoate offences
Inchoate offences are ones that seek to deal with defendants who have taken steps
towards the commission of an offence but who have not yet committed it.
The words inchoate means just begun or undeveloped. It is used to indicate that
a substantive crime has not yet been committed, but the defendant has taken steps
towards committing one or encouraging others to commit one.
The Label inchoate or incomplete is misleading, as it makes it sound as if the crime
is not a completed event despite having its own actus reus and mens rea.
The three best known examples:
i) Conspiracy this is where two or more people get together to conspire to
commit an offence and an agreement is made.
ii) Incitement this involves encouraging and pressurising others to incite an
offence. E.g. in riots someone normally incites the riot to begin.
iii) Attempt this is where the defendant has gone beyond mere preparation and
has taken steps towards carrying out a complete crime.
In each of these offences the defendant has not himself performed the actus reus
but is sufficiently close to doing so, or persuading others to do so, for the law to find
it appropriate to punish him.

2. Definition of attempts liability

The actus reus: the defendant has done an act which is more than merely preparatory
to the commission of the offence.
The mens rea: normally an intention to commit the full offence. It is more difficult if
the actus reus of the full offence requires proof that the defendant did an act in certain
circumstances. Then the defendant must intend to do his or her act but need only be
reckless as to the circumstances (if the mens rea for the full offence requires only
recklessness as to the circumstances)
Section 1 of the Criminal Attempts Act 1981 states: 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
Section 1(4) of Criminal Attempts Act 1981 excludes:
i) Attempting to conspire
ii) Attempting to aid, abet, counsel or procure;
iii) Attempting to assist an offender after the commission of a crime.
The judge and jury try to look at what happens in an individual case
It should be asked whether the defendant has taken enough steps to committing the full offence,
and whether the action has gone beyond more than merely preparatory.

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A line needs to be drawn between acts of preparation and acts which are more than preparation
that will create more liability
There is a difficulty with attempt liability as this distinction is not easy.

3. Rationale of attempts liability

There is much debate about the justification for inchoate offences.
There are some who emphasize the practical benefit of such offences: they permit the
lawful arrest and punishment of those who plan to harm someone else, without
having to wait until a victim is actually harmed.
They act as a deterrent.
There are others who emphasise the moral blameworthiness of such conduct. Moral
culpability: you are as blameworthy whether you try to and fail or whether you
succeed.
Issue of moral luck: It can be a matter of luck that, for example, an attempter failed
to harm the victim. Outcome whether you are punished or not should not depend on
luck and chance; all to do with what you are intending.
On the other hand there are those who are concerned that inchoate offences may
infringe an important principle of criminal law: wicked thoughts alone do not
deserve punishment. It is for this reason that it is not enough that a defendant plans
to harm another: he must put these plans into practice, by taking steps to do so, by
encouraging or agreeing with others to do so.
Why should you punish attempts if no harm has been done? Some people argue that
they have not caused harm. Actually there is still harm to security (a second hand
harm).
Ashworth in Principles of Criminal Law 5ed (2006, 445):
the law should not only provide for the punishment of those who have culpably
caused such harms but also penalize those who are trying to cause the harms. A person
who tries to cause a prohibited harm and fails is, in terms of moral culpability, not
materially different from the person who tries and succeeds: the difference in outcome
is determined by chance rather than by choice, and a censuring institution such as the
criminal law should not subordinate itself to the vagaries of fortune by focusing on
results rather than on culpability.
Ashworth in Belief, Intent and Criminal Liability in Eekelaar and Bell, Oxford Essays
in Jurisprudence (1987):
Blaming is a moral activity which is surely only appropriate where the criminal had
some choice or control over the matter. For this reason the criminal law should seek to
minimise the effect of luck upon the incidence and scale of criminal liability.
Clarkson et al, Clarkson and Keating Criminal Law 6th ed. (2007, 473):
Where a crime is attempted, there is a harm, namely, a threat to security. We all have
rights to bodily and proprietary security. An attempt to commit a crime represents a
danger to those rights. Our right to security has been infringed. This infringement of our
rights constitutes, in itself, a harm that the criminal law seeks to punish.

4. Actus reus of attempt

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Inchoate Offences and Attempt

The key to attempt liability is the actus reus. The actus reus of an attempt is defined in
section 1(1) of the Criminal Attempts Act 1981 of doing of an act which is more than
merely preparatory to the commission of the offence.
But what is more than merely preparatory? There is no hard and fast rule.
Section 4(3) of Criminal Attempts Act 1981 excludes:
i) Attempting to conspire
ii) Attempting to aid, abet, counsel or procure;
iii) Attempting to assist an offender after the commission of a crime.
a) Two competing theories underpinning explanations of attempt liability
i) Objectivist - to look at conduct and prioritise whats happened and look at actions of
defendant and say did they go far enough
ii) Subjectivist - look at the defendants mind, did they intend to cause the actual result.
b) What must the D have done to be criminally liable for an attempt?
i) Position prior to 1981 Act
R v Stonehouse [1978]
Proximity test - Lord Diplock said that to pass the threshold of proximity, the
defendant must have crossed the Rubicon and burnt his boats.
Prior to the 1981 Act, the last act approach was taken. It was asked what happened
in the series of actions an how close the last act was to committing the full offence.
Objectivist approach
ii) Criminal Attempts Act 1981
Allen in Textbook on Criminal Law 7th ed (2003, 278)
At some point Ds acts will cross over from being merely preparatory to being more
than merely preparatory.
At what point is an attempt committed?
Is the current approach different from proximity text developed prior to 1981 Act?
R v Gullefer (1990)
Details of Case -> Gullefer bet on dogs and put down a stake and then regretted it so he tried to
stop the race. He jumped up and down furiously to try and distract the dog which didnt work.
He was convicted for attempted theft, but appealed.
Held -> The CA allowed this appeal and dismissed his conviction on the ground that waving
your arms around did not go far enough to more than merely preparatory. This is quite an
objectivist view

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it [an attempt] begins when the merely preparatory acts come to an end and the
defendant embarks upon the crime proper. When that is will depend of course upon the
facts in any particular case (per Lord Lane).
R v Jones (1990)
Details of Case -> Jones was a married man who was having an affair, however his mistress got
bored and left him for another man. Jones wanted to get revenge on the new guy. He applied and
received he a shot gun licence and then he test fires the guns. He goes out to try and kill the man.
He knows the new guy takes the kids to school every morning, so he decided to jump in the car
after hes dropped them off. He jumps in the car and pulls out the gun and yells your not going
to like this, but safety hatch was on! They fight and the gun flies out the window. He was
convicted for attempted murder, but he appeals saying that he had not got to the last point to kill.
Held -> This appeal is dismissed and the attempted murder charge is upheld.
The words an act which is more than merely preparatory to the commission of the
offence would be inapt if they were intended to mean the last act which lay in his power
towards the commission of the offence.Clearly his actions in obtaining the gun, in
shortening it, in loading it, in putting on his disguise, and in going to the school could
only be regarded as preparatory acts. But, in our judgment, once he had got into the car,
taken out the loaded gun and pointed it at the victim with the intention of killing him,
there was sufficient evidence for the consideration of the jury on the charge of
attempted murder (per Lord Taylor CJ).
.comparison
R v Campbell (1991)
Details of Case -> The defendant attempted to rob a post office. On the day he gets ready and
drives to the post office and parks his car nearby. However, he is only carrying an imitation gun.
He has a note written to give to the people to give him the money. He walks towards the post
office but gets stopped as police have had a tip off. At trial he is convicted of attempted robbery,
but appeals.
Held -> The appeal is allowed and his conviction is quashed because he had not got far enough
into actions which were more than mere preparation, it was just preparation.
Attorney-Generals Reference (No. 1 of 1992) (1993)
in the present case the evidence of the young womans distress, of the state of her
clothing, and the position in which she was seen, together with the respondents acts of
dragging her up the steps. Lowering his trousers and interfering with her private parts,
and his answers to the police, left it open to a jury to conclude that the respondent had
the necessary intent and had done acts which were more than merely preparatory. In
short that he had embarked on committing the offence itself (per Lord Taylor CJ).
Patnaik (unreported, 5 November 1999)
it is not a necessary threshold of a case for a jury on a charge of attempted rape that a
defendant, who was engaged in an act of violently subduing a woman with intent to rape
her, should have gone as far as, say, start to undo or remove her clothing or his own or
to do some other unequivocal sexual act. It is sufficient if there is evidence from which a
jury could infer the intent and of acts which they could properly conclude were more
than merely preparatory (per Auld LJ).
R v Rowley (1992)
R v Geddes [1996]

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Inchoate Offences and Attempt

Point of Law ->

Details of Case -> Geddes entered a boys lavatory block in a school. He had no right to
be there. He was found in a cubicle with a cider can, a large knife, some rope, some
orange toilet paper, and a roll of masking tape. The prosecution alleged that he was
planning to kidnap a boy. At his trial it was argued, inter alia, that his actions could not
constitute an attempt because he had done nothing that was more than merely
preparatory. He was convicted and appealed.
Held -> The appeal was allowed.
The CA has avoided setting down any definite rule for the jury to apply, other than to
say that the words more than merely preparatory should be given their plain
meaning. Useful phrases that have been used by the judiciary to describe the actus reus
of an attempt are on the job or embarks on the crime proper.
Here are some indications which may however be gleaned from the facts of some of the
cases, although they do not represent hard and fast rules:
1) If the defendant has done the last act before completing his offence the actus reus of
an attempt will be made out.
2) It is not necessary to show that the defendant has done the last act before
committing the actual offence. In other words even though the defendant may still have
several actions to complete he may still be guilty of an attempt.
3) Simply because an act is one of a series of acts which will lead to the commission of
the crime does not mean that the act is necessarily sufficient to amount to attempt. Such
acts will amount to preparation, but not necessarily more than mere preparation.
4) In a crime of violence unless the defendant is face to face with the victim it is unlikely
that the act will be described as more than mere preparation. Unlikely, but not
impossible. No doubt a terrorist who plants a bomb under a victims car will be held to
have committed an attempt to kill, even though he has not met the victim.
R v Griffin [1993]
We have come to the conclusion that the judge was entirely correct in reaching the
conclusion that he did, that once one reached the point at which she actually entered the
school one had got to the stage where one could say that a jury could reasonably
conclude that that went beyond mere preparation (per Kay J).
R v Qadir and another (unreported, 25 July 1997)
In making his ruling, the judge must himself have in mind: (a) the essential nature of
the crime alleged to be attempted, by which we mean the nature of the act or transaction
upon which its definition focuses or hinges. By way of example, a charge involving a
killing or wounding, on the face of it, concentrates on a particular moment in time,
namely that at which the death occurs or injury is inflicted, while a charge involving an
allegation of deception, evasion or concealment, in so far as it involves a stratagem
carried on over a period of time, is likely to cover a broad course of conduct. In a case of
wounding or causing actual bodily harm, it would be likely that any act leading up to the
commission or completion of the crime but subsequently anterior to it in time will be an
act merely preparatory. In a case of deception or concealment, since the actus reus of
the crime itself may take place over an extended period of time from the point of its
anticipated successful outcome (per Potter LJ).
iii) Concluding from the decisions?

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Clarkson et al:
In short, talk about a midway point is empty rhetoric disguising the judges desire to
give themselves maximum flexibility. (2007, 499)
It is almost impossible to extract any clear principles from the cases interpreting
section 1(1). (2007, 499)
As thecases demonstrate, in many instances this test is problematic and appears to
be little more than yet another smoke-screen behind which policy can dictate when
liability should be imposed. (2003, 491)

5. Mens rea of attempt

The mens rea is a crucial aspect of a criminal attempt. It can be what makes the
difference between a harmless act and a criminal offence.
The key mens rea requirement for an attempt as stated in section 1(1) is an intent to
produce the actus reus. The defendant must intend to commit the offence.
For attempted criminal damage it must be shown there was an intention to cause
criminal damage, even though recklessness is enough for the full offence.
Attempted murder requires an intention to kill. An intention to cause GBH is not
enough, even though such an intention is sufficient for the full offence of murder.
Whybrow (1951)
Point of Law -> The Court of Appeal pointed out the distinction between the directions
to be given to the jury in a case of murder, and in the case of attempted murder.
Details of Case -> For a person to be charged with murder, the jury should be directed
towards whether the victim died as a result of an attack which had the intention to kill
or cause GBH. If the defendant intended to cause GBH then they are guilty of murder as
in murder cases there must be malice aforethought.
But where the charge is attempted murder, there must be intent to murder. Therefore it
was misdirection in this case, where a man was charged with the attempted murder of
his wife by electrocuting her in her bath, to tell the jury that they must find the prisoner
guilty of attempted murder if they were of opinion that his intention was either to cause
the death of his wife or to inflict grievous bodily harm on her.
Mohan [1975]
Intention includes direct & oblique intent
Walker & Hayles [1990]
The defendant unsuccessfully attempted to kill someone by throwing them off a boulder.
They were charged with attempted murder. It was said it wasnt pre-meditated but
oblique intention. They didnt intend it in a direct sense. Did the defendant intend the
outcome?
Crimes that can be committed recklessly

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What about the circumstances or consequences of the act?

R v Khan and A-G Reference (No 3 of 1992) appear to suggest that recklessness as to
circumstantial aspects of the actus reus of the full offence can sometimes be sufficient
for an attempt.
For an attempt, D needs intention as to the central conduct & recklessness suffices as to
the circumstances.
R v Khan (1990)
Details of Case -> The defendants were charged with attempted rape of a 16 year old.
The appellants and the victim met at a disco and then went to a house. Inside the house
some young men had sexual intercourse with the victim and the appellants attempted
unsuccessfully to have sexual intercourse with her. The trial judge directed the jury that
if the defendants were reckless as to whether or not the victim would have consented to
sexual intercourse they could be convicted of attempted rape. Recklessness here
included a could not care less attitude. They appealed on the basis that the jury should
have been directed that they could be convicted of attempted rape only if they knew or
intended that the victim was not consenting.
Held -> The appeal was dismissed.
Commentary > Khan makes it clear that the mens rea for attempted rape is that the
defendant intends to have sexual intercourse with the victim, being reckless as to
whether the victim consents. As a general proposition, if recklessness as to a
circumstance is sufficient for the full offence then it is enough for an attempt to commit
that offence.
A-G Reference (No. 3 of 1992) [1994]
Details of Case -> The respondents were charged with attempted aggravated arson. They
threw petrol bombs towards a car in which some people were sitting. The petrol bombs
missed the car and hit a wall. On a charge of attempted aggravated arson the judge ruled
that it had to be proved that the defendants intended to endanger lives in order to be
convicted of the offence. The respondents were acquitted and the Attorney-General
referred the case to the CA.
Held ->
The exact interpretation of these two cases is controversial and commentators have
disagreed on how to interpret them. Three views have been put forward.
1) Recklessness as to circumstances but not consequences. A defendant must
intend to do his or her action and cause the consequence of that action, but can
be reckless as to the circumstances of his or her action (e.g. whether the victim
in a rape case consents, or whether there were people in the vicinity of the
bomb in the Attorney-General case who lives were endangered).
2) Recklessness to circumstances or consequences test. A defendant must intend
to do his or her action, but can be reckless as to the consequences or
circumstances of that action if recklessness is sufficient for the complete
offence.
3) The missing element test. The defendant must intend to supply the missing
element. This test was proposed in the Attorney-Generals Reference case. It
requires the court to decide what is the missing element in the attempt: that is
what is missing from the case which, if present, would mean that the full
offence had been committed. In Khan, for example, if only the defendant had

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managed to engage in sexual intercourse would there have been the full offence
of rape. All the elements of rape, apart from penetration, were present. So the
missing element in Khan was the actual sexual intercourse. The missing
element test requires the defendant to supply that missing element.
As between views 1 and 2 the key question is whether Attorney-Generals Reference
extended the Khan decision or merely followed it. The debate centres on the holding in
the Attorney-Generals Reference case that recklessness that lives be thereby
endangered is sufficient for the offence of attempted aggravated arson. But is the
requirement that lives be thereby endangered a consequence or a circumstance? One
could argue either way. It is a consequence: there is the act of arson as a result of which
lives are put in danger. It is a circumstance: arson was committed in a situation where
lives could be endangered. If you think that the endangerment of lives is a consequence
then the CA appears to have accepted the view that recklessness as to the consequences
of a defendants actions can be sufficient for an attempt. It should be noted that the CA
in Attorney-Generals Reference claimed to be following Khan, which might support the
circumstances only view.
The CA in Attorney-Generals Reference proposed the missing element test. It
indicated that it thought it was an easier test for juries to understand, rather than being
a difference in law. However, it is possible to imagine cases where the missing elements
test and the Khan test would produce a different result.
What does intent mean?
Pearman (1984) confirms that the word intent in the Criminal Attempts Act carries
the same meaning as in the common law. In other words, it includes direct intent and
sometimes indirect intent.

6. Attempting the impossible?

Attempting an impossible crime is an offence.
The cases under consideration here are where a defendant is trying to commit an
offence which he or she cannot complete. The following situations need to be
distinguished:
1) Legal impossibility. The defendant is trying to perform an action which he
believes to be illegal, but which is not. This is simply not an offence.
Taaffe (1983) - The defendant imported into the country packages which he believed
contained foreign currency. He believed that it was illegal to import foreign currency,
which it was not. He could not be convicted of attempting to import foreign currency.
Similarly, if the defendant believed that taking topless photographs of his wife was an
offence he would not be convicted of attempting to commit the imaginary crime.
Less straight forward is a case where the mistake is of civil law. For example, the
defendant is attempting to damage property which he believes under civil law is
someone elses but which in fact is his.
2) Impossibility because of inadequacy of means. This is where the defendant
is trying to commit a crime but the means he is using are inadequate to commit the
offence. The defendant is clearly guilty. For example, if someone tries to poison
someone else but is using so little poison that it has no effect on their wellbeing. Clearly,
they would be guilty of an attempt if they intended to kill the other person.

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More controversial is a much-debated hypothetical case where D sticks pins into a wax
model of V genuinely believing that doing so will release evil powers which will kill V. If
D is a devout believer he may believe that sticking pins into the model of V is as effective
as stabbing V. Although there is a widespread view that the use of such radically
deficient means to attempt should not amount to an attempted murder, it is in fact hard
to explain how it is different from the case where D shoots at V who is in such a long
way away that there is no way that a bullet could reach him. The best explanation is that
offered by Duff who argues that such conduct failed to engage with the world as an
attempt to commit the offence.
3) Physical factual impossibility. Here the reason for the failure is not the
ineffective means used, but is that the crime simply cannot be committed. For example
D tries to kill V who he thinks is asleep, but is in fact dead. Or D plants seeds believing
they will grow into a cannabis plant, but in fact grows chives. In these cases the
defendant can still be guilty.
The law is governed by section 1(2) and (3) of the Criminal Attempts Act 1981:
(2) A person may be guilty of attempting to commit an offence to which this section
applies even though the facts are such that the commission of the offence is impossible.
(3) In any case where
a) apart from this subsection a persons intention would not be regarded as having
amounted to an intent to commit an offence; but
b) if the facts of the case had been as he believed them to be, his intention, would be so
regarded, then, for the purposes of subsection (1) above, he shall be regarded as having
had an intent to commit that offence.
The effect if these provisions is that what is key for the law on attempts in this area is the
accuseds intention. For the purposes of impossible attempts the facts are taken to be
the facts as the defendant believed them. So if the defendant believes he is dealing in
illegal drugs he can be convicted of an attempted drug-dealing offence, even if in fact
what he is selling is chalk. He will be guilty of an attempt to deal in drugs.
Shivpuri [1987]
Details of Case -> Shivpuri was arrested by customs officers. He confessed that he was
dealing in illegal drugs. However, on further analysis, it would found that the suitcase
did not contain illegal drugs but snuff and harmless vegetable matter. He was charged
with an attempt to commit the offence of being knowingly concerned in dealing with
and harbouring prohibited drugs. He appealed against his conviction on the basis that,
as he did not have in his possession an illegal drug, he could not be charged in
connection with an attempt to deal in such drugs. The CA dismissed his appeal and he
then appealed to the HL.
Held -> Appeal dismissed.
Commentary -> The Lordships overruled their decision in Anderton v Ryan and held
that if, on the facts as the defendant believed them to be, the defendant was doing
something that was more than merely preparatory to the commission of the offence, he
can be convicted of an attempt. Shivpuri does much to clarify the law.
There is one significant area of doubt, and that is what believe means here. What if D
has sexual intercourse with V who consents to the sexual intercourse, but D is not sure
whether V consents. Is this doubt enough for believes in section 1(2)? In other words
for the purposes of the section 1(2) in deciding whether the defendant has performed an
act which was more than merely preparatory on the facts as the defendant believed
them to be, are suspected beliefs sufficient?

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Anderton v Ryan [1985]

Inchoate Offences and Attempt