Describe and critically assess the law on attempted offences

When considering the differences between a person who attempts and fails to
commit a crime and a person who successfully commits a crime, the factors which
separate them may be a faulty gun, poor aim or a victim who dodges the bullet. From
the perspective of criminal punishment, both offenders may be ‘equally dangerous
and equally in need of rehabilitation and restraint’ (Module Guide).
One reasoning for the law on attempted offences is seen here. The issue with this
reasoning is that the law depends on the defendant having done something
manifestly wrong, regardless of intention, which calls for retributive punishment.
The other reasoning is to prevent a crime, or disable a dangerous person, before a
crime occurs, thus arises the question of retribution or prevention.
Prior to the Criminal Attempts Act of 1981, the law required the element of proximity.
In the case of Eagleton 1855, Parke B stated 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’. This provision did not allow for prevention or early
intervention. The application of this test states that if the defendant had committed
the last steps necessary on his part to commit an offence, it will be recognised as an
attempt. In the case of R v Stonehouse 1978 it was held that if the defendant has not
committed the last act it for the judge to decide if it fulfilled the proximity test. This
resulted in unusual results as in the case of R v Robinson.
The Criminal Attempts Act 1981 gave the following definition for attempted offences
in Section 1; ‘If with intent to commit an offence to which the section applies, a
person does an act which is more than preparatory to the commission of an offence,
he is guilty of attempting to commit the offence’.
The Actus Reus is the doing of an act which is more than merely preparatory to the
commission of a substantive offence. ‘More than merely preparatory’ is still based on
a proximity test which is decided by the judge or in some cases, the jury. In the case
of Gullefer, the defendant saw that the dog he had betted on in a race was losing so
he jumped on to the track in an attempt to stop the race and result in its cancellation
which would allow him to collect his initial bet. His conviction for attempt theft was
quashed by the CoA as it was merely preparatory as the race had not been called off
and he had not embarked on a crime proper. This test was also applied in Campbell
where the CoA held that the D’s actions were merely preparatory.
In the case of Geddes the defendant was found in the boy’s toilet at a school and in
possession of a large knife, rope and tape, evidence which pointed towards a kidnap
attempt. Convicted of attempted false imprisonment, the case was successfully
appealed. Court held that it had not gone beyond preparation as he had not entered
the school or made contact with any students. Laying in wait was deemed
insufficient.
A case which falls on the other side of the line is Jones 1990. In this case the
appellant had gotten into the victim’s car and pointed a loaded gun at the V’s head
with the intention to kill. The V managed to throw the gun out of the window. The
CoA upheld the conviction for attempted murder though the D argued that there were
more steps, such as removing the safety catch and pulling the trigger.
The legal position continues to be rather uncertain as seen in the two approaches in
the aforementioned cases. A broader approach is seen in Jones which recognizes
that some preparatory acts short of actually trying to commit the offense, may fulfil
the proximity test in order to be seen as more than merely preparatory. Campbell
and Geddes show a more restrictive approach which limits liability in situations
where a person has tried and failed to commit an offense. The Law Commission has
not made any significant recommendations for reforming this approach.
S.1(1) defines the Mens Rea as the Mens Rea of the actual offense (intention to
commit the Actus reus of the offense). For offenses with intention or recklessness as
the Mens Rea, prosecution must prove that the D intended the outcome. In
attempted murder, an intention to kill must be proved even though the actual offense
may be fulfilled with intention to commit grievous bodily harm.
In O’Toole it was held that although recklessness as to causing damage will suffice
for arson, it must be proven that the D had intended to cause damage. In the case of
Whybrow (1951) it was held that only intent to kill suffices for murder. In AG’s
Reference (No. 3 of 1992) (1994) the respondent threw a petrol bomb at a car with
passengers but missed. He was charged with aggravated arson, recklessness to
endangering lives. CoA held that recklessness sufficed. The issue of if the defendant
intends to perform the Actus Reus of the offence but is only reckless regarding the
element of circumstance was see in the case of R v Khan 1990 and in Pace and
Rogers which is at odds with the decision in Khan.
Conditional intent was defined in the case of AG’s Reference (No. 1 and 2 of 1972)
(1980) where the CoA held that if the defendant opens a bag with the intention of
stealing something only if he found something valuable inside, he can be convicted
of attempted theft even if he found nothing of value provided that it is proven that the
D intended to steal all or some of the contents.
In Common law, courts often found themselves stuck in a bind regarding
circumstances which were deemed as impossible attempts. Prior to 1981, as is the
case of Haughton v Smith, Lord Hailsham stated that ‘Steps on the way to
commission of what would be a crime, if the acts were completed, may amount to
attempts to commit the crime, to which, unless interrupted, they would have led; but
steps on the way to the doing of something, which is thereafter done and which is no
crime, cannot be regarded as attempts to commit a crime. Equally, steps on the way
do something which is thereafter not completed, but which if done would not
constitute a crime, cannot be indicated as attempts to commit that crime’.
S1(2) of the Criminal Attempts Act 1981, overturning the previous laws, provides
that a person may be guilty of an attempt even though the facts are such that the
commission of the offense seems impossible. By this standard, if one attempts to
murder someone with a harmless substance that they believe to be a lethal poison,
the person may be guilty of attempted murder.
The case of Shivpuri 1987 overruled the House of Lords decision in Anderton v
Ryan 1985. The defendant was in possession of bags of powder which he thought
contained heroin. Though it proven to be a harmless substance, he was charged
with a drug offense and convicted. The appeal was dismissed as it was still an
attempt. Lord Bridge addressed this error in the previous case by clearly stating that
‘the first question to be asked is whether the appellant intended to commit the
offences… the answer was plainly yes, he did. Next, did he … do an act which was
more than merely preparatory to the commission of the offense?’ and admitting that
the acts were clearly more than preparatory which led him to the conclusion that the
appellant was ‘rightly convicted’.
In the case of Taafe 1984 the defendant took some packages into the UK which he
thought contained currency. He thought that importing currency was illegal. The
packages turned out to be full of cannabis. He was not guilty of an offense as he did
not intend to import cannabis and importation of currency is also not an offense.
To be charged as guilty of committing a crime, it is generally required that there must
be a clear causal connection between the act and the intended result. This causes a
grey area in the law. One may consider circumstances of a technically impossible
situation where the defendant’s error was incompetency rather than unsuitability.
The Law Commission Consultation paper ‘Conspiracy and Attempts’ (Law Com No
183 (2007) proposes a new definition for the element of conduct in an attempted
offense. It involves the introduction of a new offense ‘Criminal Preparation’. Attempts
is limited to “persons who were engaged in the last acts needed to commit an
intended offence.” And Criminal Preparation is limited to “acts of preparation which
are properly to be regarded as part of the execution of the plan to commit the
intended offence”. The idea was to clearly define what constitutes an attempt while
having an option standby for cases which cause doubt. The standby offense makes
provisions for preventative action for certain acts which do not fulfil the proximity test
but are still reasonably part of the execution of an act which is not merely
preparatory. This would apply to cases such as Geddes, Gullefer and Robinson. The
law commission eventually abandoned these new provisions in the final report.
As mentioned in the essay, there are minor grey areas which would be mitigated with
amends such as the abandoned proposals by the Law Commission. However, in
conclusion, one can reasonably argue that the current laws on criminal attempts
provide a rather wide scope for addressing attempted offences with fairness and
clarity with regard to circumstance.