Comment on what amounts to a criminal attempt

A criminal attempt is defined by Sec:1 (1) Criminal Attempts Act 1981 'If, with intent to commit an offence 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.'

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Prior to the Criminal Attempts Act 1981 it was long held that it was an offence to attempt to commit a criminal offence. What was less clear was the point at which the defendant became guilty of attempting to commit an offence. As one might expect a series of tests came about under the common law in order to determine if and when the defendant's acts amounted to an attempt.


The tests were based around concepts that recognised that there was a relationship between the issue of whether the defendant had done enough and the proximity of the defendant to the scene or incident in question. Another test became known as the last act test. This considered the issue of whether the defendant needed to do any more in order to be charged with an attempt to commit an offence or had he or she done enough short of completing the substantive offence itself.


The purpose of the 1981 Act was to replace the common law tests and previous decisions with a statutory definition of the offence which laid down a test in order to help all concerned with a common sense and practical approach. This also reflects the idea that members of the jury will probably know when somebody has been up to no good.


The first issue is to determine what amounts to an attempt or to identify the actus reus of attempt. We are now helped by Section 1 (1) of the 1981 Act, which says that an attempt is an act which is more than merely preparatory to the commission of the offence. The Act does not go further and does not provide a definition as to what 'more than merely preparatory' means. So we need to look at how the courts have approached this question in practice.


We must look at a series of cases and see how these help. In Gullefer (1990), the defendant had placed a bet on a dog which was clearly losing. He jumped over a fence and onto the race track to try to cause confusion as part of a plan to have the race declared void. The effect of such a declaration would enable him, like other punters, to get his stake money back. Presumably this was a safer option rather than run the risk of losing the bet. He was arrested and charged with attempted theft. The trial judge ruled that more than merely preparatory means the defendant must have gone beyond purely preparatory acts and 'embarked on the crime proper.' He (Gullefer) was found not guilty of attempted theft as he was able to argue that amongst other things he had not gone back to the tote office with his betting slip to demand his money back.


In Geddes (1996), the position is less clear. Geddes had been found in a boys' lavatory block of a school. Geddes did not have permission to be on the school premises. When seen he ran away and discarded a rucksack he had in his possession. The rucksack contained a large kitchen knife, rope and masking tape. Geddes was arrested and charged with attempted false imprisonment. The issue in this case was whether the defendant had 'embarked on the crime proper' or whether he had only kitted himself out in readiness. He had not contacted or detained any of the pupils. Was there enough evidence to show whether he had tried to commit the offence? Had the target of his endeavours not showed up or had Geddes lost his nerve and not carried things through? Geddes was convicted of attempted false imprisonment but had his conviction quashed on appeal.


It is open to a jury to convict even though the defendant has not performed the last act before the crime proper as in Gullefer. It also seems that it is not necessary for the defendant to have reached some point of no return. (A-G's reference No 1 of 1992 (1993). In this case the defendant was charged with attempted rape. By the time the police arrived the defendant had pushed the victim on to the ground and taken off some of her underclothes. The police found him lying on top of her with his trousers down. The judge directed the jury to acquit, on the basis that there was insufficient evidence that the defendant had attempted to have sexual intercourse. The defendant was acquitted and the issue was referred to the Court of Appeal.


Lord Taylor CJ stated: "It is not, in our judgment, necessary, in order to raise a prima facie case of attempted rape, to prove that the defendant with the requisite intent had necessarily gone as far as to attempt physical penetration of the vagina. It is sufficient if there is evidence from which the intent can be inferred and there are proved acts which a jury could properly regard as more than merely preparatory to the commission of the offence. For example, and merely as an example, in the present case the evidence of the young woman's distress, of the state of her clothing, and the position in which she was seen, together with the respondent's acts of dragging her up the steps, lowering his trousers and interfering with her private parts, and his answers to the police, left it open to a jury to conclude that the respondent had the necessary intent and had done acts which were more than merely preparatory. In short that he had embarked on committing the offence itself."

As already established the Criminal Attempts Act 1981 does not give any further enlightenment as to the correct meaning of the test of 'more than merely preparatory....' The matter has come before the courts and a review of some of these cases would be helpful. 


We have already considered the case of Gullefer and seen the extent to which the trial judge's approach was upheld on appeal. In the case of Campbell (1991) the defendant was found not guilty of attempted robbery. Campbell had been arrested and charged with attempted robbery. He had been arrested in the street outside a post office with an imitation gun and wearing a motor cycle helmet. He had a 'hand over the money or else' type of note in his pocket. Was he guilty? Or was he merely checking out the vicinity for escape routes or waiting for the right moment? Was he close enough, in the minds of the jury, to leave no doubt as to his intentions? Apparently not because the defendant was found not guilty of attempted robbery under the more than merely preparatory test.


In Boyle and Boyle (1987), the defendants were not so lucky. Both defendants were interrupted from whatever they were doing. They were standing next to a door. The lock was found to be broken as was one of the hinges. The benefit of the doubt did not go their way and both were convicted of attempted burglary under the Theft Act 1968.


Common sense seems to have prevailed in the helpful case of Jones (1990). In this case the defendant was arrested and charged with attempted murder. Jones had clearly carried out a number of preparatory acts, namely, he had acquired a shotgun, shortened the barrel so as to cause the shot to spread wider when fired reducing the need for accuracy and obtained some ammunition.


In addition he put all his weapons in a bag and disguising himself lay in wait for his victim. He got into the victim's car and pointed the gun at him uttering words to the effect that 'you are not going to like this...'


The issue arose as to whether he had embarked on the crime proper. He argued that he only intended to frighten the male victim and that he really intended to take his own life as he could not come to terms with losing his partner to the man concerned. Jones also argued that there were still some acts that needed to be done if he intended to kill his victim (only an intention to kill will suffice for a charge of attempted murder). These consisted of taking off the safety catch and applying pressure to the trigger. The judge determined that the defendant had stepped over the 'preparatory line' when he got into the car with the loaded gun and raised it to the victim. Jones was found guilty of attempted murder.


It may be possible to make some observations following an examination of these cases. The cases all involved consideration of the test as set out in the Criminal Attempts Act 1981. The matter of the test was in 'issue' before the court with the result that the court heard arguments from both the prosecution and defence counsel as well as directions by the trial judge and considerations on appeal.


The cases all fall within a relatively short period of time after the passing of the 1981 Act so it is likely that the courts concerned were aware of the importance of the work they were doing and conscious of the need to provide assistance for others to follow.


It could be argued that the rulings by the judiciary on this point have been relatively straightforward for the benefit of the jury and reflective of modern approaches which tend to be based on common sense and practical considerations.


It is probably fair to say that the test is satisfactory in that it has been found to be workable by the courts and not needing long technical directions by trial judges.


It is also possible to argue that the law has been made more certain. This is likely to lead to a better understanding of individual rights and the likely outcome of a case in the event of a dispute regarding the test, as legal advisers will be able to advise in the light of previous decisions involving the 1981 Act.


The law is probably better than it was before when it could only be found by considering a number of previous decisions and precedents.


Finally, the matter of the necessary mens rea is, as one would probably expect, namely, the same mens rea for the completed offence. Unusually a higher level of mens rea is needed in some offences than would have been necessary for the completed offence. This was demonstrated in the case of Jones (1990) as the charge was one of attempted murder, so the lesser level of mens rea – an intention to cause serious injury is not sufficient.



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Criminal Attempts Act 1981

Inchoate offences: Legal Guidance: The Crown Prosecution Service





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