Attempts By the end of this topic you will be able to (AO1): Explain what is meant by an attempt and the reasons why 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 (AO2): 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: 1. Produce a case report on R v Ferriter 2012 EWCA Crim 2211, outlining the: a. Facts b. Issue c. Outcome d. Area of attempts in question e. Linked case. & revise for end of unit test on this topic & strict liability. And revise for a 60 mark DRAG test on elements of liability (AR, MR and causation) 2. Write up your response to the Criminal Attempts Act essay question detailed below. How will you be assessed? In addition to the DRAG test & case list, you will also plan and complete the essay below for your homework, aiming to improve on your previous attainment by at least 3 marks for both AO1 and AO2. The Criminal Attempts Act 1981 was intended to improve the law on attempts. The extent to which it has succeeded is open to doubt. Critically evaluate the accuracy of this statement. [50] Key Terms Term Means? Term Means? Incohate offence Rubicon test Series of Acts test MTMP Proximity test Attempting to do the impossible 1
Introduction to Attempts 1. Why might we need to criminalise attempts? In order to decide whether the law is doing its job properly (and I ll be up front and say I don t think it is!) we need to look at why we need laws criminalising an attempt. After all, these are defendants who have not completed any substantive ( full ) offence. Technically they have done nothing wrong, so why do we say they do? 1. It allows the police to do their job more effectively 2. These are people who impose a sufficiently clear risk of intentional harm if they were allowed to complete their actions e.g. the drug importer who is stopped at customs 3. There is a high moral culpability associated with their acts, which would have completed if they weren t interrupted or stopped. E.g. the person who poisons drink, which is accidently thrown away. AO2 Thinking: Which is the best argument for criminalising attempts and why? 2. How much do you have to do to be liable for an attempt? Look at the following scenarios... In each an action is being performed. Marked the ones which may constitute an attempt and explain why: Act Attempted Crime Liable? Why? Trying the handle of a door Burglary Knocking down a wall Escape from a prison Walking up behind someone and taking your hands out of your pockets Placing a ladder against a house Murder Burglary Taking out life insurance Making a false claim that someone died Dragging someone into a shed Rape 2
So what is the actual law? Criminal Attempts Act 1981 Attempts, along with incitement and conspiracy, are known as the inchoate (or ) offences. Attempts comes from the Criminal Attempts Act 1981, which was put into place following a need to clear up the confusion in the courts regarding quite how far you had to go to be legally liable for the attempt. Remember: Although the liability for an attempt rests mainly on the mens rea, that alone is not enough. There have to be some physical steps as well. The problem for the courts is how close to carrying out the crime do you have to get? Definition: Mens Rea? 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, Actus Reus? s.1(1) Criminal Attempts Act 1981 What does this mean in reality? Let s use an old favourite to illustrate how the section works. Apply the law to the following case: R v White 1910 Would you like a drink mother? Was he liable for attempted murder? 1. Was his AR more than merely preparatory? 2. Was his mens rea intention to kill? 3
What s excluded? Oh yes, as with everything in the criminal law, there are exceptions to the law on attempts (or occasions on which D will not be liable for the attempt.) Words of act This Excludes... Might be a problem because... D can only be liable if he has...done an act s.1(1) This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence s.1(4) 4
A little more detail on actus reus According to s.1(1) of the Criminal Attempts Act 1981, D must do an act or acts which are: This question is one of, and is left to the. [s.4(3)] But: 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. However, if the judge decides that the evidence is capable of meeting the threshold, then it is up to the jury to decide whether, on the facts they are liable. AO2: What might be the problem with this? Exactly what how much do I have to do to meet the test? R v Jones 1990 Look at the description of the case below. Highlight the point at which you think he think he has done an act which is more than merely preparatory. 1. D buys a shotgun, shortens its barrel and loads it. 2. D leaves his house disguising himself by wearing overall and a crash helmet. 3. D approaches V s car as he his dropping his daughter off at school 4. D opens the door and gets in 5. D says that he wants to sort things out 6. D takes out the shotgun from the bag 7. D points it at V and says you re not going to like this D argued that he was not guilty of an attempt, as this was all preparation, and he would have actually had to fire the gun to be liable! So what did the CA say? CA emphasised that it was the words of the CAA 1981 which should be followed, over and above the previous common law tests. They upheld his conviction, holding that although some of the acts were preparatory, BUT they said that stage was the evidence of an attempt. It didn t matter that there were some acts left to do, he had clearly moved from mere preparation to MTMP at this point. Do you agree? Why? Why not? 5
What were the previous tests Prior to 1981, attempts were a common law offence, which means the definition was left up to the courts. This in turn led to a lot of confusion, as different judges took different approaches to when an attempt starts. So, when the Act came in, and there was no guidance on what MTMP actually meant, a lot of judges and defendants looked to these tests to help them defendants especially as a lot of these were stricter, at least in principle, than this new test. Test One: Proximity This 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 preparatory acts, to the full offence. According to the very early case of Eagleton (mis-selling of bread!), this means that D is only liable for an attempt if he does an act immediately connected with it Robinson 1915 Followed and confirmed the ratio of Eagleton calling it a safe guide D s conviction was quashed. Test Two: Burnt all your boats or Rubicon test... This is really a tighter version of the proximity test, and is sometimes known as the last acts test. In normal language this means: Stonehouse 1978 HL Diplock said that it was only an attempt if [D] crossed the Rubicon and burnt his boats. What issues are there with these tests so far? 6
Test Three: 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 interrupted. Davey v Lee 1968 DD were charged with attempting to steal metal from a site. Ratio 1. A policeman had heard noise by the fence, and saw two men, one of which was a D. 2. 20 minutes later a passerby saw a white van without lights ½ a mile away from the site. 3. The van was stopped by police 14 miles away from the site, and DD were in it. The police searched it and found wire cutters. 4. They then started to drive back to the police station, and saw DD throw something out of the van. 5. Bolt cutters were found in the area, and there was a hole in the fence! DD were convicted and appealed on the grounds that they were only preparatory acts R v Boyle & Boyle 1986 CA followed Sir Stephen s test, and upheld the convictions. 7
Some more guidance on what is meant by MTMP Remember: The Act doesn t define this anywhere, although it is careful not to use the words of the tests which existed before the Act (more on those later ) As the Act does not give guidance it is left to the to develop it. Interestingly, these are all CA cases. We are still waiting for the Supreme Court to get in on the act! R v Gullefer 1990 *key case* According to Lord Lane CJ, judges should look at the plain ordinary meaning of the words in the Act: 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 R v Jones 1990...approved and followed this approach. If we ignore the emphasis on the facts of each case, the principle seems to be clear: and attempt is trying to do something, R v Campbell 1991 On a warm summer s day, D was seen with an imitation gun, dressed in motorcycle helmet and gloves pacing within a yard of a post office door, over a period of around an hour. The police arrested him and charged him with attempted robbery. Whilst approving the interpretation in Jones, the CA held that there was no way a reasonable jury could have decided on the facts that he had embarked on the crime proper as he had yet to even enter the post office. Thinking: Why do you think that a lot of people criticise this case? Does it reflect the aims of the law on attempts? 8
The following case is one of the most controversial, and there are a lot of questions as to whether this was the right decision on the facts. The Law Commission hates it with a vengeance! 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.? Was this result what Parliament intended when they passed the Act? Well, probably not, as, as a direct result of the case, Parliament had to create a new offence in s.63 of the Sexual Offences Act 2003 of trespass with intent to commit a sexual offence to plug the loophole! Developing your AO2 Geddes is one of the key cases, and it is worth looking at what exactly is so controversial about the decision before we move on... Restricts attempts to only the last acts Ignores the intentions of Parliament in passing the Act Fails to take account of why attempts are criminalised Ignores the plain ordinary meaning of the Act 9
So what happened next? Interestingly, where you and I might argue with the CA s decision in Geddes and Campbell, and say that they are being very restrictive, the CA has been quite consistent in applying it... Case Facts Does it meet the Guellfer/Geddes test? D drove up to a barn, got out, and hid oxy-acetelyne equipment in the nearby hedge. He then went over Tosti and started fiddling with the lock, when he became aware he was being watched, and ran off. Charge: attempted burglary. Bowles & Bowles DDs house was raided by the police one morning. Amongst other things, the police found a forged will in the name of DD elderly next door neighbour. Charge: attempting make an unlawful instrument Stretch and Challenge Sex Offences: Are they consistent with the rest of the law? Applying the Guellfer test: 1. Using that test, would D be liable for attempted rape? 2. Is the decision consistent with the CA approach in other attempts cases? Why? Why not? Dagnall 2003. V was at a bus stop where the D was already waiting. It became apparent to her that D wished to have sex with her and, indeed, he said expressly that he wanted to fuck her. She became frightened and moved away from the bus stop. She was followed by D, who ultimately grabbed her and forced her against a fence. She was screaming. She managed to get back to a bus stop in another road and was still screaming and being held by D at a point when she became convinced that she was to be raped and so indicated to D that he could do what he wanted as long as he didn t hurt her. 3. What might its approach here reveal about the importance of public opinion in determining the meaning of MTMP? 10
Consolidation Using what you have learnt in this section, complete the table below! Case: Was there an attempt according to the Court? Agree/ Disagree Reason Gullefer Jones Campbell Geddes Tosti Bowles & Bowles White AO2: What do you think should be the test for the actus reus of attempts? Reason below using at least two relevant cases. 11
Attempting to do the impossible! According to the Law Commission, this was the reason behind the Criminal Attempts Act 1981. Prior to the act you could not be liable for attempting to do the impossible. Haughton v Smith 1975 Police intercepted a van of stolen meat and concealed officers inside and let the van continue. D was charged with handling stolen goods, but appealed arguing that they were in the lawful possession of the police, and so could not be stolen. Thinking: Why might we want to criminalise those who attempt to do the impossible? (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. Physically Impossible Crowley and Llewellyn Can you commit GBH on a dead man? Legally Impossible Anderton v Ryan Can a legally bought video player ever be stolen? 12
A little AS among the A2 Anderton v Ryan 1985 D was charged with attempted possession of stolen goods on the basis of her purchase of the recorder for 500 and her belief it was stolen when she bought it. However, the HL seemed to have ignored the act, or at least not respected the intentions of Parliament in passing the act and so six months later we have. Shivpuri 1986 HL use the overrule their previous decision. to Bridge LJ What turns what would otherwise... be an innocent act into a crime is the intent of the actor to commit an offence. Challenge yourself: How else might you distinguish between these two cases? A more recent example: Jones 2007 Facts Police, responding to graffiti on trains asking for young girls to get in touch for sex, and giving a number, began texting D, pretending to be a 12 year old girl. Ratio Eventually they arranged a meeting and D was arrested and charged with attempting to incite child under 13 to engage in penetrative sexual activity. 13
However, sometimes things really are impossible! R v Taafe 1984 Developing your AO2: Are we justified in imposing liability for attempting to do the impossible? Develop your answer using at least two cases or statute provisions. 14
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, is your... intention. What does intent actually mean? 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 about oblique intent? According to the case of Pearman 1985, intention has the same meaning in s.1(1) as it does in the common law, which means it can be direct or oblique, as confirmed by the courts in the case of Walker & Hayes. Oblique intent means. What about an attempt to kill? For actual murder, either an intent to kill, or an intent to commit GBH is sufficient. However, for attempts, the law is slightly different. Whybrow 1951 An intent to kill only is sufficient for a charge of attempted murder. However, on the facts there is no way a reaaonsable jury would not have concluded D had an intent to kill, and so although he won the argument his conviction was upheld. 15
Issue One: Conditional Intent This (in posh words) is a stipulation something upon the fulfilment of which something else depends. Example: Miss Hart holds a gun to your head, intending to kill you only if you name the Daily Mail as Britain s best paper. If you name any other the condition for the intent is not fulfilled. Thus if I pull the trigger, the condition is not filled and technically I am not laible. In the criminal law it is in the offences of theft and burglary where this becomes a problem. Essentially D is charged with attempting to steal the jewellery in a purse, or the bottles of wine lorry. The problem is that D may not even have known the jewellery or bottles were there, and so technically has no mens rea, and so would not be liable, which seems unfair. 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. Attorney General s Reference No 1&2 of 1979 (1979) closed the little loophole Issue Two: What about crimes with more than one MR element? Do you have to intend them all? This is where it gets a bit tricky and the courts start really playing around with the words of the Act! The act only uses one word: courts have taken a more generous approach to this area., and so that, technically, should apply to all elements. However, the Decision of the Court: D will still have to intend the central act of the offence, but for any circumstances in which that offence may take place, or consequences, he can just be subjectively reckless. What does this mean in reality... Let s have a look! 16
Circumstances This is the central element Intent to have sex Rape This is a circumstance in which the sex takes place. D does not reasonably belive that she consents R v Khan 1991 D was charged with the attempted rape of 16 year old, but he failed to penetrate her. D argued that although he intended the penetration, he did not know she didn t consent and therefore he was not liable. Consequences Intent to cause damage by fire Arson endangering life intending or being reckless as to endangering life 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. 17
Can you apply your understanding of the law on attempts to these scenarios? Task One: Attorney-General s Reference (No. 1 of 1992) 1993 D dragged a girl into a shed. He lowered his trousers and sexually assaulted her. However, he did not have an erection. Is D guilty of attempted rape? Why? Why not? Reason your response using the appropriate tests and cases. Task Two: How impossible is impossible? 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 your answer using appropriate case and statute law. 18
How could we improve the law on attempts? Area Reason Proposal In the final report? Why/why not? What do you think? Yes No liability for omissions Role of Judge and Jury Geddes test Some overlap and repetition in the role of the judge and jury was leading to inconsistencies (the judge finding there was evidence of MTMP, and the jury disagreeing). The decision of the Court of Appeal in Geddes and Campbell was too narrow and the court too inconsistent The judge will decide if there is enough evidence under which a reasonable jury would find that D did acts or omissions capable of being more than merely preparatory. The role of the jury will then be only to decide whether D did the acts or omissions alleged, not whether they were enough for an attempt. MTMP will become a matter of law, not of fact. No No (compare to the decision of the court in Tosti and Dagnall) No Summary Offences Attempts as one offence D could be liable for the alternative offence of criminal preparation, which would encompass acts linked to the final offence, but not immediately connected. No It would have the same maximum sentence as an attempt and was designed to encompass cases such as Geddes and Campbell. 19
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