*REMINDER: THIS IS THE SYNOPTIC TOPIC FOR 2012* Inchoate Offences: 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 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, progress and prepare for January s synoptic paper. 1. Complete a set of case cards on the key attempts cases, ensuring that you cover the relevant facts, ratio, issues and links to any other relevant cases 2. Complete the essay detailed below, which will be planned in class time, remembering to refer to the information in the source you have been given in your response. End of Unit Assessment 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. This topic alone is worth 40% of your A2 grade. You will also complete the following essay questions: '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] 1
What is an attempt? It s not as easy as it sounds! Firstly... Can you think of two other words or phrases which you could use to explain what an attempt is: Secondly... For each of the following crimes, without knowing anything more about them that what you do now, what would you have to do to be liable for the attempted version? Murder Kidnapping Rape Theft Assault Burglary Thirdly... Look at the following statements. In each an action is being performed. Marked the ones which might constitute an attempt and explain why: Trying the handle of a door Knocking down a wall Walking up behind someone and taking your hands out of your pockets Placing a ladder against a house Taking out life insurance Knocking on the door of someone s house Fourthly... Can you spot any issues with the offence so far? 2
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 offence. Technically they have done nothing wrong, so why do we say they do? Means? 1. It allows the police to do their job more effectively 2. These are people who impose a sufficiently clear danger 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... So, the question then becomes what element of a criminal offence are we punishing in an attempt? AO2: Why might this cause a problem? 3
Right. Enough about the theory... The Law on Attempts Attempts, along with incitement and conspiracy, are known as the inchoate (or ) offences. They are all offences where D does not complete the final substantive offence. However, because of a combination of their actions and mens rea, they are liable for this lesser offence. Attempts is a statutory offence, and 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 liable for an attempt legally. 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 s.1(1) Criminal Attempts Act 1981 Actus Reus? What does this mean? R v White 1910 See if you can apply the law to the following case, which we have already met this year. Do you think that he had done enough to be liable for the attempt? 4
Exclusions Oh yes, as with everything in the criminal law, there are exceptions to the law on attempts. Some of these are more controversial than others! WORDS OF ACT THIS EXCLUDES... MIGHT BE A PROBLEM BECAUSE.....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) Actus Reus According to s.1(1) of the Criminal Attempts Act 1981, D must do an act or acts which are: AO2: What s the problem with this phrase? 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: Can you spot a potential problem here? 5
Exactly what kind of act[s] do I have to do to meet the test? R v Jones 1990 Ok, so it s time for you to become a judge. Read through the facts of the case and decide: 1. If D is liable for attempted murder 2. At what point you think he think he has moved from preparation to attempting and why. D buys a shotgun, shortens its barrel and loads it. D leaves his house disguising himself by wearing overall and a crash helmet. D approaches V s car as he his dropping his daughter off at school D opens the door and gets in D says that he wants to sort things out D takes out the shotgun from the bag D points it at V and says you re not going to like this Why did D argue he was not guilty of attempted murder? 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. CA upheld his conviction, holding that although some of the acts were preparatory, BUT. 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. Test When is Jones liable? Test When is Jones liable? Proximity Substantial Steps Rubicon Geddes 6
What were these previous tests? Remember: 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. Why could the judges vary their opinion? 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. Example: Remember Jones? He argued that he would have had to cock the gun, put his finger on the trigger and then pull it to be liable! Test One: Proximity 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 preparatory acts, to the full offence. Eagleton 1855 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 Parke B This was confirmed in the following case: Robinson 1915 Followed and confirmed the ratio of Eagleton calling it a safe guide 7
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. However, he also approved the ratio of Eagleton. What issues are there with these tests so far? 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. A policeman had heard noise by the fence, and saw two men, one of which was a D. 20 minutes later a passerby saw a white van without lights ½ a mile away from the site. 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. They then started to drive back to the police station, and saw DD throw something out of the van. Bolt cutters were found in the area, and there was a hole in the fence! Ratio 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. 8
Back to the modern law How did the Courts interpret MTMP? The Act deliberately does not use the word proximity in s.1(1), so there is an argument that by using these different words, they are trying to create a wider test, but is it as wide as substantial steps? As the Act does not give guidance it is left to the to develop it. To begin with, the CA seemed to apply a variety of these older tests (look at the dates on the cases), but that inconsistency is unfair. 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 (and refuses to follow Engleton). 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. 9
AO2 Development: Is this case too narrow an interpretation? What problems might this approach cause? What more might D have had to do? How can you reconcile this decision and the decision in Boyle & Boyle? The following case is 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.? In fact, as a result of the Geddes decision, 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 for your synoptic, 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 Addresses only one type of attempt 10
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 Creates confusion and inconsistency in the interpretation of the section 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 its application, Case Facts Does it meet the Guellfer/Geddes test? Tosti Bowles & Bowles Stretch and Challenge Sex Offences: Are they consistent? Look at the following case from 2003. Applying the Guellfer test: 1. Would D be liable for attempted rape? 2. Is the decision consistent with the CA approach in other attempts cases? 3. What might its approach here reveal about the importance of public opinion in 11 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.
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 White So, what does all of this mean? Well, in summary... The current test is this: Only if D has embarked on the crime proper or is actually trying to commit the full offence then that will be sufficient. AO2 Thinking: Do you think this is what Parliament intended in s.1(1)? Aim to use a case in your answer 12
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. Which type of intention? According to the case of Pearson 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. Walker & Hayes 1980 Ratio Please note that although the decision has been disapproved of in Woollin, the principle seems to remain! 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 an attempt to kill? Whybrow 1951 13
A Problem: Conditional Intent This (in posh words) is a stipulation something upon the fufliment 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, and so technically I have MR! 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 it... How? What about those crimes with more than one MR element? This is where it gets a bit tricky and the courts start really playing around with their tests! The act only uses one word: that s far toooooo easy!, so surely that applies to all aspects of MR? Er... What was the decision: Essentially, 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. I bet that makes absolutely no sense right? Well, look at the crime on the next page... 14
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 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. Problem: 15
Attempting to do the impossible! According to the Law Commission, this was the reason behind the Criminal Attempts Act 1981. Would you really try to commit an offence you know is impossible? Well, no. So these are the really daft offenders! Normally it s because they have made a mistake... how? 1. 2. 3. Ok... what happened before the Act? Haughton v Smith 1975 HL Facts 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 because he said that they were in lawful police custody and so couldn t be stolen. The Law Commission did not approve of this approach, and their suggestions eventually helped to create s.1(2) and s.1(3) of the Act: (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. Why do you think they wanted to criminalise attempting to the impossible? 16
There are two situations when you may be liable: Case Why was it impossible? Physical impossibility Crowley & Llewellyn 2005 Legal impossibility Anderton v Ryan 1985 Anderton v Ryan 1985 R v 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. How could you distinguish between these two cases? A more recent example: Jones 2007 Facts Ratio 17
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. 18
Final Tasks 1. Read the facts below. They come from the case of Attorney-General s Reference (No. 1 of 1992) 1993. 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. 3. The Law Commission says that most of the problems are because of the word attempts itself. Why do you think it causes so many problems? 19
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? 20
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 21
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, and then the final report in 2009, both of which are available on the blog, if you want to stretch and challenge yourself. Area Reason Proposal In the final report? Why/why not? What do you think? No liability for omissions Yes Role of Judge and Jury No Geddes test No Summary Offences No Attempts as one offence No 22