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Introduction

• An attempt is where D tries to commit a


crime but for some reason fails to
complete it.

• White (1910)
The Actus Reus of attempts

• S.1(1) Criminal Attempts Act 1981


provides that:
‘If, with intent to commit an offence to
which this section applies, a person does
an act which is more that merely
preparatory to the commission of the
offence, he is guilty of attempting to
commit the offence.’
More than merely preparatory’

When is D guilty of an attempt?


Consider the following scenario: Ken discovers that his
girlfriend is seeing another man (F). Ken decides to do
something about it. He decides to kill this love rival. But
at which point does he become liable for attempted
murder?
• He buys a shotgun.
• He shortens the barrel.
• He loads it.
• He leaves his house, wearing overalls and a crash
helmet with the visor down, carrying a bag containing the
loaded gun.
• He approaches F’s car as F drops his daughter
off at school.
• He opens the car door and gets in.
• He says he wants to ‘sort things out’.
• He takes the shotgun from the bag.
• He points it at F, and says, ‘You are not going to
like this’.
• At this point F was able to grab the end of the
gun, throw it out of the window and escape.
• Jones (1990),
Common Law
• The common law offence of attempt was abolished by
the Criminal Attempts Act 1981.
• At common law, there were a variety of tests used by
the courts in determining whether D had done an act
which could be described as ‘an attempt’ to commit an
offence.
• The ‘last act’ test Stonehouse (1977)
• The ‘proximity’ test
• In Eagleton (1855), it was said that ‘acts remotely
leading towards the commission of the offence are not to
be considered as attempts to commit it, but acts
immediately connected with it are.’
Cases showing more than mere
preparation
• Boyle and Boyle (1987)

• Attorney-General’s reference (No 1 of


1992)
Cases showing mere preparation -
not quite an attempt.
• Gullefer (1990)
• Campbell (1991)
• Geddes (1996),

What do you think of these decisions?


• The Court of Appeal postulated the following
questions:
• Had the accused moved from planning or
preparation to execution or implementation?
• Had the accused done an act showing that he
was actually trying to commit the full offence or
had he got only as far as getting ready, or
putting himself in a position, or equipping
himself, to do so?
More than merely
preparatory: conclusion
• When D might be said to be ‘embarked on
the crime proper’ (Gullefer [1990]) or when
he was ‘actually trying to commit the full
offence’ (Geddes [1996]), he has
committed an act that is ‘more than merely
preparatory’ and is guilty of an attempt.
• Do you think ‘ more than merely
preparatory’ is the best test for deciding
whether an attempt has taken place?
The mens rea of attempt

• Intention
• The essence of attempt is D’s intention.
• In Walker and Hayles (1990), the Court of
Appeal applied the Nedrick (1986)
direction on oblique intent in the common
law to ‘intent’ in s.1 of the 1981 Act.
Conditional intent
• Attempted theft and burglary cases have caused
difficulties when it comes to framing the
indictment. The problem is that most burglars,
pickpockets, etc. are opportunists who do not
have something particular in mind to steal. Two
cases from the l970s illustrated the problem:
• Easom (1971)
• Husseyn (1977)
• Attorney-General’s Reference (Nos. 1 and 2 of
1979) (1979),
The relevance of recklessness

• Consequences
• Recklessness has a role to play in
attempts. In Attorney-General’s Reference
(No.3 of 1992) (1994),
Circumstances

• If D is charged with attempted rape, does it have to be


proved that he:
• intended to have sex, being reckless as to whether V
consents, or
• intended to have non-consensual intercourse?
• The Law Commission, in their report preceding the 1981
Act, took the view that intention as to every element was
required; that is, knowledge as to circumstances was
required. However, this had not been the position before
the Act, and the Court of Appeal did not change it
afterwards.
• In Khan (1990),
Excluded offences

• S.1(4) of the Criminal Attempts Act 1981 excludes


attempts to commit conspiracy or incitement
• S.1(1) also implicitly excludes other attempts. There
must be ‘an act’, so it is impossible to attempt to commit
a crime which can only be committed by omission (e.g. D
cannot attempt to fail to provide a breath test).
• Where a crime cannot be committed intentionally (such
as involuntary manslaughter), it is impossible to attempt
it. Furthermore, because diminished responsibility and
provocation are no defence to attempted murder, there is
therefore no offence of ‘attempted manslaughter’ (though
the Law Commission suggested creating it.)
Successful attempts

• Is failure essential to a conviction for


attempt?
• In Webley v Buxton (1977), it was decided
that it was possible to be guilty of attempt
even if the crime was completed.
Impossibility

• Taaffe [1983] – If an act is not a crime in this country


then attempting to commit it will not be an offence
There may be an offence where D fails to commit the
substantive crime, because he makes a mistake or is
ignorant as to certain facts. The crime may be:
physically impossible or
legally impossible or
it may be impossible because of the inadequate
methods D plans to use, or does use, to commit the
substantive offence
At common law, there was no liability if the crime
attempted was physically or legally impossible.
• S.l(2) of the Criminal Attempts Act 1981 was intended to
abolish that loophole. The subsection provides that
• ‘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.’
• Despite the statutory provision, in Anderton v Ryan
(1985), the House of Lords decided that the 1981 Act
had not been intended to affect the situation of
impossibility.
• In Shivpuri (1987) they had to rectify their mistake
Is the law on attempts satisfactory?
Problems
• unclear dividing line between merely
preparatory and an attempt
• Some decisions are not effective to protect
the public
• Should intention alone make D guilty?
Reform

• Should there be a crime of attempted


manslaughter?

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