14 Criminal attempts

Contents
14.1

Retribution or prevention?. . . . . . . . . . . . . . . . . . . . . . . . 177

14.2

Actus reus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 178

14.3

Mens rea . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179

14.4

Impossible attempts . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

Am I ready to move on? . . . . . . . . . . . . . . . . . . . . . . . . . 182

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Criminal law 14 Criminal attempts

14.1 Retribution or prevention?

The difference between the person who tries to commit a crime and fails and their
counterpart who is successful may be nothing more than a gun which misfires, poor
aim or a victim who ducks. From a penological perspective, both offenders may be
equally dangerous and equally in need of rehabilitation and restraint.
Therein lies one rationale for the law of criminal attempts. However, there is a problem
with this rationale in that criminal law generally is premised on the defendant having
done something manifestly wrong which demands retributive punishment. If the
rationale behind the law of criminal attempts is to prevent people who intend to
commit an offence from committing it, then it may justify a law of criminal attempts
which allows the intervention of law enforcement agencies well before the defendant
has done anything manifestly wrong. What is the law of attempts for retribution or
prevention?
This confusion at the heart of criminal attempts has created some destabilising
doctrine. Consider, for example, the case of Geddes (1996). D was found in a boys
lavatory in a school, armed with knife, rope and masking tape. He did this in
furtherance of an intention to falsely imprison a boy with a view to committing a
sexual assault. The question was whether this could amount to an attempt. The judge
ruled that it could and it was for the jury to decide whether it did. The jury was in no
doubt D was convicted. The Court of Appeal, however, quashed the conviction. To
count as an attempt at false imprisonment, D had to do more than prepare for it. He
had to have done things which formed part of the execution of the offence.
The difference between the approaches of the trial judge and the Court of Appeal is
simple. The trial judge was treating the law of criminal attempts as a way of preventing
dangerous and blameworthy people from committing offences. The Court of Appeal
was treating the law of criminal attempts as a means of punishing people who got
so near to the commission of a substantive crime as to be worthy of punishment for
its inherent wrongfulness, rather than for what it heralded. The former approach is
forward-looking and preventive; the latter is backward-looking and retributive (see
Chapter 2 of this subject guide). Some jurisdictions, for example the United States,
follow the former approach. Some, such as England and Wales and most other
common law jurisdictions, follow the latter approach, albeit with some degree of
equivocation.
Prior to the Criminal Attempts Act 1861, the law was that there should be proximity
between the offence intended and the acts done by the accused in furtherance of the
commission of that offence. The need for proximity was first advanced in the case of
Eagleton (1855), in which the defendant was given the job of delivering bread to the
poor for which he was paid by the guardians of a parish. D claimed the money but
delivered loaves which were underweight and was charged with attempting to obtain
money by false pretences. Parke B gave the following statement of principle which
became the standard test for attempts.
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...

Since the defendant in Eagleton had committed the last act needed on his part to
commit the offence, his act was clearly proximate (immediately connected) to it
and so he was guilty. Unfortunately, this led on occasions to judges insisting that an
attempt always required defendants to have performed the last act needed on their
part for the crime to be committed; in other words for them to have completed their
attempt.

Activity 14.1
Read the discussion of the cases of Robinson and Comer v Bloomfield in Wilson,
Section 18.5.B Actus reus. Do you agree with the courts decision in these two cases
that the defendants had not committed an attempt? What was their reason for
reaching this decision?

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Generally, however, the courts did not require defendants to have performed the last
act necessary on their part to complete the attempt. So in White (1910) it was said
that a defendant could be guilty of attempting to kill his mother by poison although
the modus operandi was to poison by cumulative effect and the defendant had
administered only small amounts at the time he was convicted. A number of different
tests were essayed: for example, in Stonehouse (1978) Lord Diplock referred to the
fact that the defendant had crossed the Rubicon; that is, he had gone so far towards
achieving his criminal objective that there was no turning back, although there were
still acts needed to be done.
Attempting to commit a crime was made a statutory offence by the Criminal Attempts
Act 1981 in order to pinpoint with greater precision than hitherto the quality of
conduct which amounts to an attempt. The basic definition is contained in s.1:
(1) 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.

14.2 Actus reus

In England and Wales, the Criminal Attempts Act 1981 is representative of the general
common law approach, which is to seek a midway point between acts of preparation
and acts of perpetration to constitute the attempt. Proximity to the completed
offence is still required but, in order to ensure a practical marriage of prevention
and retribution, the test for proximity is couched in terms which avoid specifying
the degree of proximity required. This is done by requiring an act which is more
than merely preparatory to the commission of the offence. Ireland, Canada, Victoria,
Singapore and Australian Capital Territory all use a similar formula. The emphasis in
each case is upon what remains to be done. Is the person in the process of executing
the offence or simply preparing for it?

Activity 14.2
Read Wilson, Section 18.5.B.2 The act interpreted and answer the following
questions.
a. Did D in Geddes go beyond mere preparation? The Court of Appeal said not but
many critics of the case thought he had. What do you think?
b. Adam wants to kill his wife. Knowing that she has a potentially fatal heart
condition that is susceptible to fat and salt, he makes sure that every meal he
cooks for her is heavily laden with both fat and salt. Is Adam guilty of attempted
murder?

14.2.1 When is an act more than merely preparatory?

The more than merely preparatory test is still a proximity based test. The judge
decides whether the defendants acts are capable of being more than preparatory. If
they are so capable the jury then decides whether they are in fact. Judges have been
instructed to ignore pre-Criminal Attempts Act 1981 tests such as the Rubicon test in
favour of a test which distinguishes between when the defendant is on the job, that
is in the process of executing the offence, and when they are merely preparing for this.
In Gullefer (1990), D, in the course of a greyhound race, realised the dog that he had put
money on was not going to win, so he climbed on to the track in an attempt to stop
the race, hoping that this would enable him to recover his stake. The stewards decided
not to stop the race. It was held that Ds acts were too remote from the offence he was
charged with attempting (theft of the stake money). The Court of Appeal held that at
the time D was arrested he could not be in the process of committing theft as the race
had not been called off, so there would be no evidence of him doing acts of execution
fit to put to the jury. Lord Lane CJ said that the actus reus of attempt is satisfied:
when the merely preparatory acts come to an end and the defendant embarks upon the
crime proper. When that is will depend of course upon the facts in any particular case.

Criminal law 14 Criminal attempts

It would have been different if the race had been called off, since then D was in a
position to execute the offence.
This test was also adopted in Campbell (1991), where D was charged with attempted
robbery of a Post Office. He had reconnoitred the place, bought a disguise and
imitation firearm and had armed himself with a threatening note he was intending
to give to a cashier. D was arrested before he entered the Post Office. The Court of
Appeal, quashing his conviction, held that these were acts of preparation. He had not
embarked upon the crime proper.

Activity 14.3
This accounts also for the decision in Geddes. The Court of Appeal concluded that
what D had done was to make preparation for what he later had in mind. As you will
probably agree, these decisions may be logical but they are hardly practical. Just
how far does the would-be child molester or robber have to go before they commit
the attempt?
A case falling on the other side of the line is Jones (1990) Cr App R 351. In this case,
D, who was jealous of V, got into Vs car while it was stationary and handed over a
letter. While V read it, D took a loaded sawn-off shotgun from his bag, pointed it at V
at a range of some 10 to 12 inches and said, You are not going to like this or similar
words. V grabbed the end of the gun and pushed it sideways and upwards. There was a
struggle, during which V managed to throw the gun out of the window. Ds conviction
for attempted murder was upheld. The Court of Appeal rejected the contention that
he had not performed the last act necessary to commit the offence he still had
to take off the safety catch, aim the gun and pull the trigger and so had not gone
beyond the preparatory stage. In the Courts view:
once he had got into the car, taken out the loaded gun and pointed it at the victim with
the intention of killing him, there was sufficient evidence for the consideration of the jury
on the charge of attempted murder.

Clearly the legal position continues to be uncertain and, because of the outcry arising
on the basis of cases such as Geddes, the Law Commission was charged with making
proposals for reform. Initially it flirted with the idea that a back-up inchoate offence of
preparing for crime might be used to mop up cases like Geddes, Campbell and Gullefer.
Disappointingly, in response to criticism of these proposals, it ended up making no
major recommendations for reform.

Activity 14.4
The following definition of a criminal attempt might do the trick and would at least
discourage judges from reaching decisions such as that in Geddes. To constitute an
attempt:
A must have done an act which was directly connected with its commission and which
was the last act the actor contemplated as necessary to commit the intended offence, or
was a more remote act which, without being an act of mere preparation, formed part of a
sequence of connected acts designed for the execution of the offence.

This could be supplemented by a list of statutory illustrations covering the most

problematic cases.
Try applying this to the cases covered in Wilson, Section 18.5.B Actus reus Does it
help?

14.3 Mens rea

Section 1 of the Criminal Attempts Act 1981 specifies that attempt is a crime of specific
intent. A must intend to commit the substantive criminal offence. This means that
the mens rea of attempted murder is not the intention to kill or cause grievous bodily
harm but the intention (specifically) to kill. This was made clear in Whybrow (1951), in
which D built an electric device to give an electric shock to his wife when she took a

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bath. Parker J directed the jury that if it was satisfied that in doing so D intended to kill
his wife or do her grievous bodily harm, then he would be guilty of attempted murder.
The Court of Appeal ruled that this was a misdirection but upheld the conviction as
there had been no miscarriage of justice.

Activity 14.5
Why do you think the Court of Appeal considered that there had been no
miscarriage of justice in Whybrow?
As it is a crime of specific intent, this also means that recklessness is not enough. This
is so even if the substantive offence can be committed by recklessness. So in Mohan
(1976), D was driving his car and responded to a police officers signal to stop. D slowed
down but then accelerated towards the police officer, who moved out of the way, and
D drove off. D was charged with attempting to cause bodily harm by wanton driving
at a police constable. The jury was directed that the prosecution had to prove that
D realised that such wanton driving would be likely to cause bodily harm. The Court
of Appeal quashed Ds conviction, ruling that a conviction for an attempt to cause
bodily harm by dangerous driving requires proof that D intended to cause harm by
dangerous driving. It was not sufficient to prove that D did not care whether he hit the
police officer when attempting to escape, nor that he knew it was likely.
Similarly, in OToole (2005) it was held that to be guilty of attempted arson requires
proof that D intended to cause damage by fire. A reckless use of combustibles is not
enough, even though this would be enough to convict of the substantive offence of
arson.

14.3.1 Circumstances
One qualification is in order. Consider crimes which require proof not only that a
particular result has occurred but also that certain circumstances exist. An example is
rape. The result which must be proved is sexual intercourse: the circumstance which
must be proved is absence of victims consent. The corresponding mens rea for rape is
an intention to have intercourse and knowledge that V is not consenting or absence of
reasonable grounds for believing that V is consenting. What is the corresponding mens
rea for attempted rape?
There are two possibilities. The first is that, in addition to an intention to have
intercourse, D also has to intend (i.e. know for a fact) that V is not consenting. In other
words, it would have to be Ds intention to have intercourse with a non-consenting
person (a very small minority of cases, one would hazard). This would acquit of
attempted rape any person who tried to have intercourse with a person and simply
did not care whether the person was consenting or not (the vast majority). In R v
Khan (1990) it was held, at a time when recklessness as to consent was the minimum
mens rea requirement, that recklessness as to the circumstances was also enough for
attempted rape; that is, it was sufficient that D tried to have intercourse with V, not
caring one way or the other whether she was consenting or not.
The Khan approach to attempts has been expanded to other crimes. For example, in
A-Gs Reference (No.3 of 1992) [1994] 2 All ER 121, on a charge of attempted aggravated
arson contrary to s.1(2) of the Criminal Damage Act 1971, it was held that it was
sufficient for the prosecution to establish a specific intent to cause damage by fire
and that D was reckless as to whether life would thereby be endangered. It was not
necessary to prove that D intended that the lives of others would be endangered by
the damage.

Activity 14.6
Read Wilson, Section 18.5.A.2 Attempts and recklessness as to circumstances and
answer the following questions.
a. Since Khan was decided, the mens rea for rape has changed. It is not necessary
to show that D knew V was not consenting or did not care one way or the other.
D can be guilty of rape although they honestly believe V to be consenting if that

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belief is not reasonable. What is the corresponding mens rea for attempted
rape? Is it still recklessness (D does not care one way or the other), or is it
enough that D has no reasonable grounds for believing V to consent?
b. Do you approve of the way that Khan was adopted in the A-Gs Reference case?

14.4 Impossible attempts

At common law, the courts got themselves into an unholy mess with respect to what
was termed impossible attempts. A person could be guilty of an attempt if what they
did was factually incapable of producing the substantive offence (e.g. a pickpocket
dipped their hand into an empty pocket intending to steal from it) or if the means
adopted for the task were inadequate (e.g. someone tries to blow up a safe with a
firework). However, a person could not be guilty of an attempt if what they were doing
was legally incapable of producing a criminal offence.

Illustration 14.1
a. D shoots V, an already dead man, believing him to be alive.
b. D takes talcum powder through customs believing it to be heroin.
c. D buys a gold ring believing it to be stolen. It is not.
In each case, D intends to commit an offence and takes more than merely preparatory
steps towards achieving it; yet until 1981, D was guilty of nothing. Lord Hailsham in
Haughton and Smith (1975) put it as follows.
Steps on the way to the commission of what would be a crime, if the acts were completed,
may amount to attempts to commit that crime to which, interrupted, they would have
led; but steps on the way to the doing of something, which is thereafter done and which is
no crime, cannot be regarded as attempts to commit a crime. Equally, steps on the way to
do something which is thereafter not completed, but which if done would not constitute
a crime, cannot be indicted as attempts to commit that crime.

Section 1(2) of the Criminal Attempts Act 1981 reverses that rule. It provides that:
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.

Section 1(3) states further that in any case where:

(a) apart from this subsection a persons 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.

This convoluted provision means simply that, in deciding whether what the person
was doing was attempting to commit a crime, we should ignore whether the crime
would have resulted if the facts were as they actually were and consider rather
whether it would have resulted if the facts had been as they supposed.
In Anderton v Ryan (1985), four years after the passing of the 1981 Act, the House
of Lords, incredibly, refused to accept that s.1(3) was intended to abolish the rule
that a person could not be guilty of an attempt to commit a crime if (as in b and c
of Illustration 13.1 above), the steps he was taking could not have resulted in the
commission of an offence. As a result, Ds conviction for attempted handling was
quashed when the goods which D handled, and which he thought were stolen, were
not in fact stolen.
Eventually the House of Lords saw reason in Shivpuri (1987). The defendant was paid
to act as a drugs courier. He was required to collect a package containing drugs and
to distribute its contents according to instructions which would be given to him. On
collecting the package D was arrested by police officers, and he confessed to them

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that he believed its contents to be either heroin or cannabis. An analysis revealed the
contents of the package not to be drugs, but a harmless vegetable substance. D was
convicted for attempting to be knowingly concerned in dealing with and harbouring a
controlled drug, namely heroin. His appeal to the House of Lords was dismissed. Lord
Bridge, who was in the court which decided Anderton v Ryan, was handed the short
straw of confessing the courts error in the earlier case. He said, with admirable clarity,
making it even more astonishing that the mistake was made first time round:
the first question to be asked was whether the defendant intended to commit the
offence. The answer was plainly yes. Next, did he do an act which was more than
merely preparatory to the commission of the offence? The acts were more than merely
preparatory to the commission of the intended offence. This analysis leads to the
conclusion that the defendant was rightly convicted.

Activity 14.7
Read Wilson, Section 18.5.D Impossibility and answer the following question.
Adam is a believer in voodoo. He believes that he can kill people by making a wax
model of them and sticking a pin in the model where the heart should be. He makes
such an image of Eve and sticks a pin in, intending to kill her. Is Adam guilty of
attempted murder? Should he be?

Am I ready to move on?

Are you ready to move on to the next chapter? You are if without referring to the
subject guide or Wilson you can answer the following questions.
1.

State the two rationales for criminal attempts.

2. State and explain the proximity approach to criminal attempts.

3. Explain why it has proved difficult to settle on a clear and effective rule governing
criminal attempts.
4. State the current test for deciding whether a person has performed an act which is
more than merely preparatory to the commission of the offence.
5. State and explain the mens rea for criminal attempts.
6. State and explain the mens rea for attempted murder.
7. Explain the legal position surrounding the mens rea for crimes, such as rape or
criminal damage, where proof of a circumstance is necessary in addition to a
consequence.
8. State and explain the rules governing impossible attempts.
Make sure you test your knowledge of this chapter though the online multiple choice
questions available at www.mylawchamber.co.uk