Criminal Attempts

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The Law of Criminal Attempts

An attempt occurs when a person tries to commit a crime but does not successfully complete it. For example, if a person tries to rob a bank but is stopped before they can take any money, they may be guilty of attempted robbery.

The law of attempts is mainly contained in Section 1(1) of the Criminal Attempts Act 1981. A defendant will be guilty of an attempted offence if they do an act which is more than merely preparatory to committing the offence and they have the intention to commit the full offence.

The test therefore has two parts:

The actus reus requires an act which is more than merely preparatory,
The mens rea requires an intention to commit the full offence.

Actus Reus of Attempts

The actus reus of an attempt is contained in Section 1(1) of the Criminal Attempts Act 1981. The defendant must have done something which is more than merely preparatory to committing the offence. This means that they must have moved beyond simply preparing for the crime and have started to carry it out.

An attempted offence must involve a positive act. This means that an attempt cannot be committed through an omission. This can be see in the case of R v Nevard (2006), Nevard seriously attacked his wife with an axe and knives and then prevented her from obtaining emergency medical assistance. The court confirmed that an omission cannot itself form the actus reus of an attempt because section 1(1) requires the defendant to do an act. However, his positive acts in attacking his wife could form the actus reus of attempted murder. The case therefore confirms that an attempt requires a positive act, rather than simply a failure to act.

The courts have developed different ways of explaining what is meant by more than merely preparatory. In the case of R v Gullefer (1987), the court explained that the defendant must have embarked upon the crime proper. This means that the defendant must have started to carry out the actual crime rather than simply taking steps to prepare for it.

Additionally, within the case of R v Geddes (1996), the court explained that the defendant must have moved into the executory stage of the offence. In other words, the defendant must have reached the point where they are actually trying to commit the crime.

Acts that are more than merely preparatory:

The following cases are examples of where the defendant has gone beyond mere preparation.

In the case of R v Boyle and Boyle (1987), the defendants were involved in a plan to steal money from a post office. They had taken steps towards carrying out the robbery and had reached a stage where their actions were closely connected to the planned offence. The court found that their conduct had gone beyond preparation. The case demonstrates that the defendant does not have to complete the final act of the offence before they can be guilty of an attempt. Their actions must have moved sufficiently close to committing the crime.

In the case of R v Jones (1990), the defendant followed a man in his car and then pointed a loaded shotgun at him. He had a disguise, shotgun and ammunition and had driven his car into a position where he could attack the victim. However, he did not actually fire the gun. The court held that his actions had gone beyond mere preparation because he had begun carrying out the planned attack. The case shows that an attempt can be committed even where the defendant does not carry out the final act necessary to complete the offence.

Finally, in the case of R v Tosti (1997), the defendants were found near a barn containing a valuable piece of machinery. They had tools with them and had been examining the lock on the barn door. The court decided that their actions had gone beyond mere preparation because they had started to carry out the steps necessary to enter the building and steal the machinery. The case demonstrates that the court will look at the defendant's actions as a whole when deciding whether they have moved beyond preparation.

Acts that are not more than merely preparatory:

The following cases are examples of where the defendant has not gone beyond mere preparation.

In the case of R v Gullefer (1987), the defendant wanted to win money from a dog race. He attempted to stop the race so that he could claim his bet back, but he was stopped before he could interfere with the race itself. The court held that he had not gone beyond mere preparation because he had not yet embarked upon the crime proper. His actions were still preliminary steps towards committing the offence.

In the case of R v Campbell (1990), the defendant was found outside a post office carrying a fake gun, a threatening note and a disguise. He intended to rob the post office but had not entered the building. The court decided that his actions had not gone beyond mere preparation. Although he had made detailed preparations, he had not yet started carrying out the robbery. The case demonstrates that even significant preparation will not necessarily amount to an attempt.

In R v Geddes (1996), the defendant was found in the toilets of a school carrying items including a knife, rope and masking tape. He appeared to be preparing to abduct a child, but he had not approached or taken any child. The court held that he had not gone beyond mere preparation because he had not yet started to carry out the planned offence. The case demonstrates that the defendant must have moved into the executory phase before an attempt is committed.

The difference between these cases is important. Simply planning, preparing or getting ready to commit a crime is not normally enough. The defendant must have taken a step which is sufficiently close to actually committing the offence.

Mens Rea of Attempts

The mens rea of an attempt is also contained in Section 1(1) of the Criminal Attempts Act 1981. The defendant must have the intention to commit the full offence. This means that the defendant must intend to bring about all the elements required for the completed crime.

For example, a person cannot normally be guilty of attempted murder simply because they were reckless about whether someone would die. They must have intended to kill the victim.

This was established in R v Whybrow (1951). The defendant was convicted of attempted murder after tampering with electrical equipment in an attempt to kill his wife. The court confirmed that for attempted murder, the defendant must have the intention to kill. An intention to cause serious harm, or GBH, is not enough. Therefore, attempted murder has a higher mens rea requirement than some forms of completed unlawful killing.

A defendant can also be guilty of an attempt where they have a conditional intention. This was demonstrated in Attorney General's Reference (Nos 1 and 2 of 1979). The defendants were charged with attempting to steal goods from another person. They intended to steal if certain circumstances arose. The court confirmed that a conditional intention can be sufficient for an attempt where the defendant has decided that they will commit the offence if the condition is met.

Recklessness is not enough to establish the mens rea of an attempt. In the case of R v Millard and Vernon (1987), the defendants were football supporters who repeatedly pushed against a wooden fence at a football ground. The prosecution argued that they were trying to damage the fence, but there was no evidence that they actually intended to damage it. The Court of Appeal quashed their convictions for attempted criminal damage because recklessness was not enough to establish the mens rea of an attempt, it must be the intention to commit the full offence.

Attempting the Impossible

It is possible for a defendant to be guilty of an attempt even where it was impossible for them to complete the offence. This is provided by Section 1(2) of the Criminal Attempts Act 1981.

This means that a defendant cannot automatically escape liability simply because the crime could never have been successfully completed. The important question is whether the defendant had the necessary intention and had carried out an act which was more than merely preparatory.

There are two main types of impossible attempt: factual impossibility and legal impossibility.

Factual impossibility

Factual impossibility occurs where the defendant intends to commit a crime which is recognised by law, but the circumstances make it impossible for them to complete it.

In the case of R v Shivpuri (1986), the defendant believed that he was dealing with illegal drugs and intended to possess and supply them. In fact, the substance he possessed was not a controlled drug. The defendant argued that he could not be guilty because it was impossible for him to commit the completed offence. The House of Lords rejected this argument. The defendant could be guilty of an attempt because he believed that he was committing a criminal offence and had the necessary intention. The case established that the defendant will be guilty if they have committed an act that has gone beyond mere preparation and has the intention to commit the crime, it does not matter that the actual crime was impossible to commit.

Legal impossibility

Legal impossibility is different. This occurs where the defendant believes they are committing an offence, but their actions do not actually amount to a crime under the law.

In the case of R v Taaffe (1983), the defendant was caught at a ferry terminal bringing cannabis resin into the UK, hidden inside his car and strapped to his body. However, he claimed that he believed the packages contained foreign currency and mistakenly thought that importing currency was illegal. The court held that he could not be convicted of the offence because importing currency was not actually a crime. The case demonstrates that a person cannot be guilty of attempting to commit an offence that does not exist in law.

The case demonstrates an important limit to the law of attempts. A person cannot be convicted of attempting to commit something which is not a criminal offence.

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