Criminal Attempts

Introductory Facts
1. Rationale
  1. Punish the Criminal Mind
    1. Deterrence
    2. Public Protection
    3. Criminal Mind = Criminal Liability
2. History
  1. Attempts have long been criminalised in the Common Law
    1. R v White (1910): Mother-Son-Heartattack-Son Poison-Not Linked-Attempted Murder.
  2. Judges have struggled with the AR of attempts. (Deciding how close D had to get to the full offence.)
  3. Judges have developed a number of tests in Common Law (JP)
    1. E.g: The Proximity Test.
      1. Eagleton
      2. Robinson: Jeweller-Hid Stock-Tied Self Up-Called Police-D Found+Confessed-Quashed-Not Rang Insurance-Acts Not Immediately Concerned With Substantive Offence.
  4. Couldn't be convicted of attempting the impossible. REFORM REQUIRED!
    1. Criminal Attempts Act (1981)
3. Definition of Attempts
  1. S.1(1) Criminal Attempts Act (1981)
  2. An act which is more than merely preparatory towards commission of the full offence.
4. Sentencing
  1. S.4(1) CAA (1981)
  2. An attempt will be punishable to the same extent as the substantive offence.
Actus Reus of Attempts
1. S.1(1) Criminal Attempts Act (1981)
2. An act which is more than merely preparatory towards commission of the full offence.
  1. MTMP not explained further!
    1. S.4(3) CAA (1981): Matter for the Jury to decide
    2. As Juries (at trial) lead to inconsistent decisions, on Appeal, Judges have tried to explain MTMP further, and give guidance.
      1. More Than Merely Preparatory
        R v Jones: D-Sawn off Shotgun-Entered V's Car-Pointed Gun-D Got Gun-V=Attempted Murder
        Boyle and Boyle: D's-Door-Locks Broken-Attempted Burglary-CA: Full Offence=D's Entering Building, Any attempt to Gain Access=Attempt
        AG's Reference: Man-Girl-Shed-Dragged-Attempted Rape-Argued Against-Flaccid Penis-Dragging into Shed=MTMP
      2. Less Than Merely Preparatory
        R v Geddes: Man-Boys Toilet-School-Weapons For Kidnap.
        MTMP = Moving from Preparation and Planning to Implementation and Execution.
        R v Gullefer: Greyhound Race-Dog Loosing-Man-Track-Void Race-Not "Embarked on the Crime Proper"-Not Started Get Money Back.
        MTMP = When D has Embarked on the Crime Proper
        R v Campbell: Man-Post Office-Outside-Note+Fake Gun-Rob-Changed Mind-Quashed-NO MTMP
Criminal Attempts Act (1981)
Mens Rea of Attempts
1. Common Law - Pre-1981
  1. R v Mohan: Ruled "Intent is an essential ingredient for attempts." "Recklessness is never sufficient for MR."
2. Now S.1(1) CAA (1981)
  1. Mens Rea is usually the same as the full substantive offence. However:
    1. Recklessness as a consequence is never sufficient as MR for attempts
      1. Millard v Vernon: D-Football Stand-Attempted Criminal Damage-CA-Recklessness (as a consequence) is not sufficient MR for attempted crimes, specific intention is required.
      2. Recklessness may be sufficient for 1 part of the offence.
        AG's Reference
        Recklessness as to circumstances may be sufficient for attempted rape.
        R v Khan and Khan
        D can be liable if they intended to have sexual intercourse but were "reckless as to consent."
    2. MR for Attempted Murder
      1. R v Whybrow: Showed "Intention to Kill" rather than "Intention to Kill or Cause GBH" as it is for Murder.
      2. MR is more onerous for Attempt than Full Offence.
  2. Follows CL position
Attempting the Impossible
1. Legal Impossibility
  1. D intends to commit an offence, but is apprehended. However, the offence in question is not actually an offence. It is Legal!
  2. CAA (1981) does not deal with Legal Impossibilities.
    1. R v Taaffe: HoL held D could not be guilty of attempting a crime which was legally impossible
      1. AO2: Defence was the Smugglers Defence which left a gaping lacuna in the Law of Attempts.
2. Factual Impossibility.
  1. D intends to commit an offence, but it is found that it is factually impossible to complete the full offence.
  2. Pre-1981
    1. Haughton v Smith: You cannot be convicted of attempting a factually impossible offence.
  3. S.1(2) CAA (1981)
    1. It is possible convict a defendant who has attempted a factually impossible offence.
    2. Anderton v Ryan: HoL failed to interpret the new statute properly as D was quashed of the offence.
      1. R v Shivpuri: HoL used Practice Statement (1966) for the 1st time in a criminal trial to overrule the earlier decision in Anderton v Ryan to convict of a factually impossible offence.

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Criminal Attempts

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