By the end of this topic you will be able to:

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1 INCHOATE OFFENCES: ATTEMPTS By the end of this topic you will be able to: Explain what is meant by an attempt and the reasons that we criminalise this behaviour. Understand the problems surrounding the actus reus of attempts Explain the mens rea of attempts Explain whether it is possible to be liable for attempting to do the impossible. You will also be able to evaluate: The current law of attempts and how it relates to the substantive crimes. Proposals for the future of attempts. The principles behind the criminalisation of attempts How we judge whether acts are more than merely preparatory HOMEWORK During this unit, you will be set the following. In completing homework, you will be expected to do your own research and supplement your own notes. This is essential to show understanding. 1. Complete Section A essay 12 for one week s time 2. Revise for your 30 mark DRAG test on attempts in one week s time. END OF UNIT ASSESSMENT As with AS, you will sit a DRAG test on attempts. Remember, you will have the choice to answer 10 out of thirty questions, reflecting your understanding and knowledge of the subject. You will also complete essay question 12 (from your A2 guide) for homework. This will be assessed for your understanding and evaluation of the law, and inform your progress to date. 1

2 What is an attempt? Ok, so we are at the start of the year... you know something of the criminal law... now s the time to start using it. We have been talking about this all year... plan your perfect crime in at least five steps below Now, look back at your crime. At what point do you commit it? At what point are you just attempting it? Are they the same? Why/ Why not? Look at the following statements. In each an action is being performed. Marked the ones which might constitute an offence: 1. Trying the handle of a door 2. Knocking down a wall 3. Walking up behind someone and taking your hands out of your pockets 4. Placing a ladder against a house 5. Taking out life insurance 6. Knocking on the door of someone s house. Now, answer the following questions: 1. Why might we need a law which criminalises attempts? 2. What are we punishing here? Why might this be a problem? 2

3 Ok, so how much do I have to do legally? Attempt is not alone! Attempt is one of the inchoate (or ) offences. These are offences where D has not done enough to be liable for the substantive offence, but has still done enough to be criminally liable. The other inchoate offences (which we do not study at A2) are: IDEA INCITE CONSPIRE ATTEMPT SUCCEED Attempts hinges on the of the offence, and it is for this reason that some people argue we are prosecuting people for their thoughts. However, as you can see... thought alone is not enough... there has to be some action on the part of D as well. Remember R v White 1910? Why was he guilty of attempted murder? What is excluded? Oh yes, as with everything in the criminal law, there are exceptions to the on attempts... law 1. Read s.1(4) [at the back of the handout] and identify the exceptions here. 2. It also excludes those crimes which can be committed by omission. E.g. Gross negligence manslaughter. Why? 3

4 Actus Reus Read s.1(1) of the Criminal Attempts Act 1981[at the back of the handout] What kind of acts must D do in order to complete the AR? Do you think that the act defines exactly what those acts are? NO! This is a problem... when do acts go from mere preparation to an attempt? This question is one of, and is left to the. [s.4(3)] Again, it is up to the judge to decide if there is evidence on which the jury could find that there has been acts which fit the test. If there is no evidence of such acts, then the judge must direct them to acquit. Why? Exactly what kind of act[s] do I have to do to meet the test? Well, to answer this question, we have to look not only at the current codified law in the Criminal Attempts Act 1981, but also back at some of the tests which had been developed by the courts prior to this, when attempts was a common law offence. [Simple huh?] Why do we have to look at the law before the act? At what point then does D fulfil the test? On the board are the stages of the crime below. Write down when you think that D had moved from mere preparation to attempting and why. R v Jones 1990 *Key case* Point of attempting? Why? CA emphasised that it was the words of the CAA which should be followed, over and above the previous common law tests. CA upheld his conviction, holding that although some of the acts were preparatory,. was the evidence of an attempt. 4

5 So, what then were these earlier tests? Well, they have different names (n.b. please bear in mind that although Jones says that the CAA is the most important thing, the judges still use these tests when trying to work out what those words mean!). The problem is which of these do we follow? What follows now is mainly AO2 content and if you are given an essay [sectiona] question on this topic, then this will be the area that you are expected to explore. 1. PROXIMITY This is the test that was favoured by the Law Commission. It can be a narrow test, as it seems to look backwards from the full offence, to see if what D did was close to it. MTMP, on the other hand, looks forward from the acts to the full offence. Eagleton 1855 says 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 What might be the problem with this? R v Robinson

6 2. BURNT ALL YOUR BOATS OR RUBICON TEST... So, that s what the Law Commission thought... so we have to agree with them? NO! The courts decided to use this idea for a while... What does this mean in normal language? R v Stonehouse 1978 HL Diplock said that it was only an attempt if [D] crossed the Rubicon and burnt his boats. Was it a preparatory step, or part of the execution of the crime This was confirmed by the Court of Appeal in R Widowson SERIES OF ACTS This comes from a earlier statement from Sir James Stephen in the 19 th Century. This is where D s actions form part of the AR of the crime, which would be completed if not stopped. R v Boyle & Boyle 1986 CA followed Sir Stephen s test, and upheld the convictions. 6

7 So, those are the tests... what do the courts think? R v Gullefer 1990 Lane CJ argued that Stephens didn t say when the series of acts begins. This meant that acts can be in the series but only preparatory... argh! The words of the act seek to steer a midway course. [A crime] begins when the merely preparatory acts have come to an end and [D] embarks upon the crime proper. When that is will depend of course upon the facts in any particular case This seems like a very sensible decision altogether! And in fact, R v Jones approved this approach. What it is really saying is that you start from the act (MTMP) and then modify it using the tests! This is quite a nice, open result. So, what does the court do next? NARROW it of course! R v Campbell 1991 On a warm summers day, D was seen with an imitation gun, dressed in motorcycle leathers pacing within a yard of a post office door. The police arrested him, and charged him with attempted robbery. CA quashed his conviction, holding that no as jury would see D s acts more than merely preparatory Is this case too narrow an interpretation? What problems might this approach cause? What more might D have had to do? 7

8 Well, clearly there are some issues here... so the courts nicely decide to go back to the way things were... although you might not agree with the outcome! Geddes 1996 CA quashed his conviction on appeal. They argued that D had yet to even approach a student. The two questions that need to be answered were: 1. Had D moved from planning or preparation to execution or implementation? 2. Had D 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 that position or equipping himself to do so.? Interestingly, where you and I might argue with the CA s decision in both these cases, the CA was quite consistent, and approved Geddes in Tosti (1997) and Bowles & Bowles (2004) Tosti Bowles & Bowles 8

9 CONSOLIDATION Do you agree with the results in each of these cases? Complete the table below... CASE: ATTEMPT? AGREE/ DISAGREE REASON & TEST Gullefer Jones Campbell Geddes Tosti Bowles & Bowles So, what does all of this mean? Well, in summary... The current test is this: IF D HAS EMBARKED ON THE CRIME PROPER OR IS ACTUALLY TRYING TO COMMIT THE FULL OFFENCE THEN THAT WILL BE SUFFICIENT. 9

10 Mens Rea Ok, so you have done acts which are more than merely preparatory, but what makes your acts different from the innocent person who completes the same series of steps... INTENTION. This can be direct or oblique intent, as confirmed by CA in R v Walker & Hayles 1990, which said that the test applied! Well, what if I attempt to kill? Simple really. The mens rea for murder is: 1. : or 2. However the mens rea for attempted murder is: 1. Why? Well, the CA in Whybrow 1951 said that only this was sufficient because intention becomes the principle ingredient of the offence. So, what do we mean by intent? R v Mohan 1975 An intent means a desire to bring about, insofar as it lies within [D s] power, the commission of the offence which it is alleged [D] attempted to commit, no matter whether [D] desired the consequence or not. What then if D doesn t have a particular, specified offence in mind when doing the acts? [Conditional Intent] Well, this is where we get into a bit of trouble. The offences which are covered here are. or 10

11 R v Husseyn 1977 D and another had been loitering near the rear doors of a van. The police approached and they ran off. They were arrested and charged with attempting to steal the diving equipment which was in the back of the van. What is the loophole in the law? This was also illustrated by R v Easom 1971 Attorney General s Reference No 1&2 of 1979 (1979) closed it... How? But, what if I m just reckless in my attempt? Now although I have said that intention is important, recklessness does have a small place in the law. However, here recklessness is confined to the circumstances of the crime [this can also include the consequences, when it means who you have injured]. Attorney General s Reference No.3 of 1992 (1993) CA held that the trial judge was wrong, and D only needed to intend to harm property, and it was sufficient that he was reckless as to whether life was endangered. One of the most controversial areas here is that of rape and attempted rape. Here the controversial area is rape. Is it enough for attempted rape that D knows (intention) or should it be enough that he is reckless as to the issue? R v Khan

12 Attempting to do the impossible! Can you be guilty of attempting to do something which it turns out is not a crime... yes! Under s.1(3) of the Criminal Attempts Act 1981, you can be liable. This is opposite to the common law state prior to the act. Remember: this is the situation where the substantive offence will never exist!!! Why do you think that the government wanted to include this? There are two situations when you may be liable: If an act is a physical impossibility... ever wanted to kill a dead man? If and act is a legal impossibility... you think the goods are stolen... but they aren t. Remember these two cases? Anderton v Ryan 1985 R v Shivpuri 1986 HL use the to overrule their previous decision. Bridge LJ What turns what would otherwise... be an innocent act into a crime is the intent of the actor to commit an offence. 12

13 But, what if I think it s a crime and it is not? R v Taafe 1984 Why are we punishing D in when they are attempting to do the impossible? Is it justified? 13

14 Questions: 1. Read the facts below. They come from the case of Attorney-General s Reference (No. 1 of 1992) Is D guilty of attempted rape? D dragged a girl into a shed. He lowered his trousers and sexually assaulted her. However, he did not have an erection. Reason your conclusion, using relevant case law & tests, below: 2. Fred has just broken up with his girlfriend and wants to kill her. He believes in voodoo and makes a model of his girlfriend into which he sticks 10 pins. Nothing happens. Is he guilty of attempted murder? Reason using appropriate cases. Revision Questions: Why should we have a law on attempts? What is the definition of an attempts? Who decides if an act is more than merely preparatory? What are the facts of R v Tosti? What is the mens rea for attempts? Can you attempt to do the impossible? What is the maximum that a convicted attempter can receive? Is this fair? Describe the test for deciding whether an attempt has taken place, using relevant cases. What are the three tests which can be applied to different acts? Outline R v Jones. At which point was it held to be an attempt? 14

15 Criminal Attempts Act 1981 Part I Attempts Etc Attempt 1 Attempting to commit an offence (1) 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.... (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 person s 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. (4) This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence, other than - (a) conspiracy...; (b) aiding, abetting, counselling, procuring...;... 3 Offences of attempt under other enactments... (3) A person is guilty of an attempt under a special statutory provision if, with intent to commit the relevant full offence, he does an act which is more than merely preparatory to the commission of that offence. (4) A person may be guilty of an attempt under a special statutory provision even though the facts are such that the commission of the relevant full offence is impossible. (5) In any case where - (a) apart from this subsection a person s intention would not be regarded as having amounted to an intent to commit the relevant full 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 (3) above, he shall be regarded as having had an intent to commit that offence. 15

16 Reform of the law and criticism You are the Law Commission, and have been asked to look at the current law on attempts, evaluate and suggest proposals for reform. In your groups you need to decide on four changes you would make to current law and explain why in the grid below. Remember, as with everything in law, all your conclusions should be backed up with evidence! CHANGE TO CURRENT LAW REASON 16

17 Law Commission Conclusions & Proposals Did that seem like a daft exercise? Well the Law Commission did exactly this and published a consultation paper in 2007, [LCCP 183 pub 10/10/07] with its own criticisms and proposals for reform (the final thing is due out some time this year!) If you are feeling particularly excellent, feel free to read the report on their website I would not recommend all 288 pages, but the introduction does a very good job of putting the offence into context and explaining the proposals. AREA OF CRITICISM REASON PROPOSAL EVALAUTION 17