ATTEMPTS:

Inchoate Offences:

•Offences that are incomplete

•The parties may well have desired that a crime should go ahead, but circumstances beyond their control may have prevented this.

•Categories of inchoate offences:-

•Attempts – examined in detail –essay/scenario/dilemma,

Why punish those who do not complete the offence?

•Harm – the threat

•Moral blame is identical (if not greater)

•Prevention - Police have power to arrest without a warrant a person about to commit an arrestable offence etc…

R v White (1910): D puts cyanide in his mother’s drink, intending to kill her. She dies of a heart attack before she could drink it. He tried to commit murder but did not actually kill his mother. He was convicted of attempted murder.

•Governed by the Criminal Attempts Act 1981 – abolishes the common law

•Definition S1(1) states that a person will be guilty of attempt 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 an offence’

•S4(1) ‘the attempt is punishable to the same extent as the substantive offence.’

•AR – does an act which is more than merely preparatory to the commission of the offence,

•MR – with intent to commit that offence.

•Prior to the 1981 Act the courts used several tests to decide whether D had done enough towards the commission of the offence, for him to be liable of an attempt

The main tests were:

•1) The ‘last act’ test : had D done the last possible thing he could do before committing the offence?

•2) The ‘proximity’ test : were D’s acts so immediately connected to the AR of the offence to justify liability for an attempt (backwards looking).

•The act that the Def does has to be more than merely preparation for the main crime

•Some acts are obviously mere preparation, but other acts are more difficult to categorise

•Must be an overt act – not omission

•Essentially a question of fact for the jury (s 4 (3) 1981 Act)

•DPP v Stonehouse (1978): L Diplock “acts that are merely preparatory to the commission of the offence […] are not sufficiently proximate to constitute an attempt. They do not indicate a fixed irrevocable intention to go on to commit the complete offence […] D must have crossed the Rubicon and burnt his boats”

•Gullefer (1987): D placed an £18 bet on a greyhound race. He saw that his dog was losing so he climbed onto the track in front of the dogs waving and trying to distract them so he would get his money back and the race would be ‘void’. However, he failed. He was prosecuted for attempted theft and convicted. CA quashed his conviction: act was merely preparatory. In order to have ‘embarked on the crime proper’ he would have had to have gone to the bookmakers and demanded his money back.

•Jones (1990): D’s partner told him she wanted to end their relationship, and that she was seeing another man (A). D brought a shotgun, and shortened the barrel. D then found A in his car. Wearing a crash helmet and visor he climbed into A’s car and pointed the gun at him. A managed to grab the gun and throw it out of the car window. D’s conviction for attempted murder was upheld.

•D argued as safety catch still on he had not don’t the last act before committing the crime ‘proper’ - CA held : buying and shortening the gun, loading the gun, disguising himself were all preparatory acts. But getting into A’s car and pointing the gun at him was sufficient evidence to leave the case to be decided by the jury.

•Widdowson (1985): D used neighbor's details to try to get a van on hire purchase. Signed the paperwork with his own name. Court held was NOT more than merely preparatory – the company would still have to respond agreeing his finance, and then a hire purchase to go through.

•Campbell (1990): D had an imitation gun, sunglasses and a threatening note in his pocket was in the street outside of a post office. His conviction for attempted robbery was quashed. If D had entered the post office then he would have been guilty.

•Attorney-General's Reference (no 1 of 1992) (1993):D dragged a girl up some steps towards a shed. He made sexual advances towards her, including physical contact however did not become sexually aroused. He therefore argued he could not have attempted to commit rape. However the court upheld his conviction.

•The act of dragging her alone, would be merely preparatory. However the following acts lead his behaviour to be ‘more than merely preparatory’.

•Geddes (1996): D found in boys toilets in a school in possession of a large kitchen knife, some rope and masking tape. No right to be in the school. He had no contact with any of the students prior to this day. His conviction for attempted false imprisonment was quashed.

•CA thought two questions should be asked

n1) had the accused moved from planning or preparation to execution or implementation

n2) Had the accused 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 a position, or equipping himself to do so?

•Boyle and Boyle (1987): D found standing by a door with a broken lock and hinge. Conviction for attempted burglary was upheld. CA – embarking on the crime proper? Once they were inside it would be burglary, therefore breaking the lock and hinge was embarking on the crime proper.

•Tosti (1997): D intended to burgle premises. He took metal cutting equipment with him and hid it behind a nearby hedge. He then examined the padlock, but didn’t damage it. He was convicted of attempted burglary.

•Nash (1998): 3 letters addressed to ‘Paper Boy’. Two were offers to engage in sexual activity, and the third purported to offer work at a security firm. The third was signed ‘JJ’. Police told the boy to go to the park to meet ‘JJ’ and when he got there he met D, who asked if he was looking for ‘JJ’. D was then arrested on three accounts of attempting to procure an act of gross indecency. On appeal held no case to answer for the THIRD letter, (but was for first two)

•Otton LJ – ‘third letter was not sufficiently approximate to the act of procurement to amount to an attempt’

• s.1(1) of the Criminal Attempts Act 1981 – What is the required mens rea for a criminal attempt?

•The Def must normally have the same intention as would be required for the full offence

Can be split into sections:

1) conditional intent

2) recklessness

•Easom (1971): D picked up A’s handbag in the cinema, rummaged through it and then put it back without removing anything from it. His conviction for the theft of the bag, and its contents was quashed. CA refused to substitute with a conviction of attempted theft because there was no evidence D intended to steal the items.

•No evidence, D had intended to permanently deprive A of the bag or the items within.

•Husseyn (1977): D and another man seen loitering at the back of a van. When police approached they ran away. D was arrested on grounds of attempting to steal sub-aqua equipment from the van. CA quashed his conviction.

•Attorney-General's Reference (No 1 and 2 of 1979): If D had a conditional intent (IE: intended on stealing if he found anything worth stealing) then could be charged with an attempt to steal some or all of the contents

•Based on this principle – Easom would now be charged with attempting to steal some or all of the bags contents, rather than the bag and specific items inside, and Husseyn would be charged of attempting to steal some or all of the contents of the van.

Attempted murder:

•MR for attempted murder, is higher than the MR for actual murder!

•For murder must intend to kill or cause GBH

•For attempted murder, must intend to kill

•Whybrow (1951): D wired up wife’s bath and caused her electric shock. Convicted of attempted murder.

•Walker and Hayles (1990): D1 and D2 engaged in a fight, in which V was thrown over a third floor balcony and severely injured. The MR for attempted murder could be inferred from the fact that D foresaw death as a virtually certain consequence of his acts.

•Millard and Vernon (1987): D’s repeatedly pushed against a wooden fence on a stand at a football ground. Prosecution alleged that they were trying to break it, were convicted of attempted criminal damage. Convictions quashed.

•Recklessness generally not sufficient MR for attempts.

•Attorney-General's Ref (No 3 of 1992) (1994): A petrol bomb thrown from a car narrowly missed a parked car with 4 men inside and 2 standing nearby, instead hitting a wall. Those who threw the bomb were charged with attempted aggravated arson, the court stating that whilst the criminal damage was intentional, they had been reckless as to whether life had been endangered.

•Appeal to CA – It was sufficient to intend to damage property, being reckless as to whether lives would be endangered.

•Khan (1990): 4 men all tried to have sex with a 16 year old girl unsuccessfully. Convictions upheld despite trial judge's direction that it was only necessary to prove they had intended to have sex, knowing the girl was not consenting, or not caring re:consent.

•Pace & Rogers (2014): P worked at a scrap yard owned by R and his father. Police used undercover officers to see if stolen items would be taken into scrap yards. Two separate officers went to the yard with ‘stolen metal’ and both times it was bought by the yard. P and R charged with attempting to convert criminal property. Crown suggested that they suspected the metal was stolen and this MR was sufficient for attempts. Appealed to the CA where it was held that suspicion was too low a level of MR and therefore P and R were not guilty.

Committing the impossible:

•Prior to 1981 the House of Lords had held that where a crime was legally or physically impossible to commit then the Def could not be guilty of attempting to commit it

•Criminal Attempts Act (1981) was intended to close this loophole and make defendants guilty of an attempt even though the full offence was impossible – s1(2)

•“ a person may be guilty of attempting to commit an offence…even though the facts are such that the commission of the offence is impossible”

•Anderton v Ryan (1985): Mrs R bought a very cheap video recorder. She thought it was stolen which she later admitted to the police. Her conviction was quashed as it was not stolen.

•Shivpuri (1986): D agreed to receive a suitcase which he thought contained prohibited drugs. Suitcase was delivered, containing snuff and vegetable matter. D convicted or attempting to be knowingly concerned in dealing with prohibited drugs.

The HL combined both s.1(2) and 1(3) of the Criminal Attempts Act meant that a person could be guilty of an attempt even if the commission of the the full offence was impossible.

s.1(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 purpose of subsection (1) he shall be regarded of having an intent to commit that offence.

•Jones (2007): D wrote graffiti on the walls of train and station toilets, seeking girls age 8-13 for sex, in return for payment. He left a mobile number for them to call. A journalist saw the message and contacted the police who used undercover officers to pretend to be young girls. D sent several text to one particular ‘girl’ named ‘Amy’ (a ‘12 year old girl’) in which he tried to persuade her to engage in sexual activity. They planned to meet in Burger King in Brighton, where he was arrested. He claimed at trial that he could not be guilty because ‘Amy’ did not exist. The judge rejected this subjection and on appeal his conviction was upheld.

Excluded offences:

•s.1(4) of the 1981 Act excludes attempts to commit the following..:

•Conspiracy

•Aiding, abetting, counselling or procuring the commission of an offence

Reform:

•Sept 2007 Law Commission published a Consultation Paper ‘Conspiracy and Attempts’ (Paper No 183), recommending the following:

•1) present offence of an attempt should be abolished and replaced with two new offences

nA new attempt offence, limited to the situation where D reaches the last acts needed to commit the substantive offence: “criminal attempt”

nA new attempt of criminal preparation

•2) Both new offences, would require proof of intention to commit the substantive offence (direct, oblique, conditional)

•3) Both new offences carry same max penalty as substantive offence

•4) Should be possible to commit either of the new offences by omission

•However this idea was abandoned in their 2000 report

•2009 paper ‘Conspiracy and Attempts’

•Amended so that intent includes conditional intent – in statute

•D should only be guilty of a circumstance crime, if he was SUBJECTIVELY reckless

•Provided D has the same MR as the original crime (unless negligence) should be capable of being convicted of an attempt

•Should also include omissions where D failed to discharge their legal duty to V

•These recommendations were accepted but will not be implemented

Essay Points:

1.The courts have not been very clear in deciding the dividing line between what is “merely preparatory” and what is an attempt – better than the old law, however does leave gaps for cases such as Gullefer and Gedes

2.Some decisions in this area are not effective for protecting the public – Geddes?!

3.The early decisions on “mens rea left a loophole where D intended to steal if he could find anything worth stealing, but the concept of conditional intent has now clarified this.

4.Then there is the point of whether D should be guilty just because of intention – D must do something toward the offence, before being guilty? What about people like Shivpuri?

5. It could be argued that in cases such as Shivpuri and Jones the defendants are being convicted on their MR alone, they haven’t actually done anything ‘more than merely preparatory’

•HOWEVER – this aim is to protect society?

6. An attempt cannot be committed by omission – ‘an act that is more than merely preparatory’ – is a suggestion in Law Comm Report 2009 ‘where D failed to discharge his or her duty to V, where that omission unchecked, would have resulted in V’s death” allows for some attempts even where an omission is concerned

7. D must act with ‘intent to commit an offence’ - only direct intention is sufficient MR? – Court generally have shown that intent does also include foresight of consequences

8. Recklessness – not sufficient for MR generally, even if it is for the full offence.

9. Rationale behind attempts – stopping criminal behaviour before harm is caused

10. Gives power to the police to stop criminals before they go on to commit an offence BUT need to balance this against too early interventions otherwise we would be punishing people for just THINKING something

11. Left to the jury to decide using common sense – GENERALLY this is satisfactory

12. Inconsistencies in cases and how the tests really apply

13. Is the current law enough of a deterrent?

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