Discuss the problems that the courts and Parliament have encountered in their efforts to clarify the law relating to attempted crimes

 Written by James Lawrence.

The law of attempts was common law until the Criminal Attempts Act 1981 when Parliament made their first attempt to clarify it. They defined an attempt as when a person acts ëWith intent to commit an offence to which this section applies, person does an act which is more than merely preparatory to the commission of the offenceí. 

This definition may seem simple but since then there have been many questions raised about how far a defendant needs to go before the act is ëmore than merely preparatory.

The case of Jones (1990) demonstrates just how far someone can go before being liable for attempted murder. In this case a man intended to kill his ex-mistressís lover so he bought a shotgun, shortened the barrels, got into his victimís car, and pointed the gun at his head saying ëYou are not going to like thisí before being overpowered by his victim. went to the House of Lords where it was decided that everything up to the point where Jones aimed the gun at his victim was preparatory to the commission of the offence. However, the act of aiming the gun at the victimís face while intending to kill him was the point where Jones could be liable for attempted murder.

In Campbell (1991) where the defendant walked to a Post Office armed with an imitation gun, a motorcycle helmet on and a threatening note to pass to the cashier. The police had received a tip off that he intended to rob the post office so they arrested him before he entered the building. Despite this he was acquitted on appeal because his acts were found to be not ëmore than merely preparatoryí. This meant however that for him to be convicted of attempted armed robbery the police would have had to allow him to enter the Post Office, potentially putting lives in danger. This decision, along with the one in Jones (1990) means that a defendant would actually have to hold a gun to someoneís head before they could be convicted of attempted murder even if the police knew beforehand that they intended to commit this crime. This either puts the potential victim in a very dangerous situation for the sake of getting a conviction, or allows the defendant to escape conviction when he has the mens rea for murder. The Court of Appeal made tried to rectify this by taking a tougher stance in AGís Reference No 1 or 1992 (1993) where it was decided that a man could be found guilty of attempted rape without showing that he intended to penetrate the womanís vagina. Although the facts of the case are significantly different to those in Jones and Campbell it shows that the courts are less willing to acquit a defendant when it is clear that they did intend to commit the offence but didnít reach the stage of the crime that is ëmore than merely preparatory. 

When looking at the mens rea of attempts it is important to remember that there has to be a specific intention to commit the crime. Therefore reckless behaviour is not sufficient to be convicted of an attempted crime. The Court of Appeal clarified this in Millard and Vernon (1987). This was first established during the case of Mohan (1976) when they said that intention to commit an attempted crime was ëA decision to bring about, in so far as it lies within the accusedís power, the commission of the offence which it is alleged the accused attempted to commit, no matter whether the accused desired the consequence or notí. This would mean attempted murder could only be proved if the defendant had fully intended to kill the victim or foresaw that death was a virtually certain consequence of his actions. This was confirmed in Walker and Hayles (1990) where, although the Court of Appeal accepted the direction from the original trial ñ that the jury may find the defendant guilty if he foresaw that there was a ëvery high degree of probabilityí that death would result from his actions, they made it clear that they preferred the words ëvirtually certainí. However, after the case of Woolin (1998) it is very likely that direction used in Walker and Hayles would no longer be accepted by the Court of Appeal.

Although from a report drawn up by the Law Commission it is necessary for intention to be proved for every case involving an attempted crime. This has no always been the case however. There are some cases such as rape or arson where lesser mens rea will suffice. In the case of Khan and Others (1990) it was alleged that the defendants, some boys who were at a friendís house, had attempted to rape a 16-year-old girl. They claimed that the judge had misdirected the jury on the mens rea because, although they did intend to have sex with the victim they claimed that they believed she was consenting, therefore they did not have the necessary mens rea for all parts of the offence. However, the Court of Appeal decided to apply the full definition for rape which included ërecklessness as to the womanís state of mindí as intention. Therefore the jury did not have to consider the boysí states of mind and they were found guilty of attempted rape. This verdict showed that the courts were willing to accept that in some cases recklessness can also be viewed as having intention to commit attempted rape. It also goes against the Law Commissionís original view that all attempted crimes should require full intention to be proved.

In AGís reference (No 3 of 1992) 1994 an man was charged with attempted arson under s1(2) of the Criminal Damage Act 1971. The question here was, can a man be reckless as to whether life is endangered? The Court of Appeal decided that it could and said that, as long as the defendant was in the necessary state of mind to commit the full offence or arson, then the conviction should stand. This means that the mens rea necessary for attempting to endanger life can be proved simply by showing that the defendant was reckless. Although no other offences besides attempted rape and attempted arson require a lesser mens rea, it is assumed that this can apply to other offences as they are decided by the courts. 

The law of attempts in relation to impossible crimes is also another area of la that has seen several conflicting views expressed both by the courts and Parliament over the years. Originally it was decided in the case of Haughton v Smith (1975) that a defendant could not be charged with attempting an impossible crime but Parliament decided to change this in the Criminal Attempts Act 1981 where s1(2) clearly sates that ëA 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. The situation was changed again in Anderton v Ryan (1985), in this case a woman bought a video recorder in the belief that it was stolen. It turned out that it was not but the prosecution still believed that she could be charged with attempted handling of stolen goods. When this came o the House of Lords it was decided that, despite the clear statement made in the Criminal Attempts Act, it would be wrong to find the woman guilty in this situation.

However, two years later the case of Shivpuri emerged, where a man believed he was employed to smuggle drugs into the country and then sell them but once the substance was examined it turned out to be a harmless vegetable matter. He was still charged with dealing with a prohibited drug and the case went to the House of Lords where his conviction was upheld. According to Lord Bridge this was because Shivpuri had definitely tried to commit the actus reus of the offence ñ taking possession of and dealing in what he believed to be drugs. This was more than merely preparatory and nothing further was required for him to be guilty of the offence so, according to s1(2) of the Criminal Attempts Act 1981 h must be guilty. Lord bridge also concluded that this verdict could not stand with the earlier decision in Anderton v Ryan (1985) and that the House of Lords ëfell into errorí in that case. Therefore the judges decided to overrule Anderton v Ryan (1985) and dismissed the appeal in Shivpuri (1987).

This at last makes the law regarding impossible attempted crimes very clear ñ a defendant can be charged with attempting an impossible crime using the Criminal Attempts Act 1981 and using the case of Shivpuri as authority.

For a long time both Parliament and the courts have been tweaking and refining the law on attempts. As it was originally a common law offence it was created out of necessity and only changed when relevant cases arose that highlighted problems or areas that needed clarifying. When Parliament created the Criminal Attempts Act 1981 they took their first step towards making the law clearer and easier to understand. However it took many more cases before the law could be ëfine tunedí and certain key points such as the issue of recklessness and impossible attempts were decided upon. This work is still not completed however, as society changes the law must adapt to suit it so there may be other cases in the future which raise further important points about the law of attempts. If they do it is up to both Parliament and the courts to decide upon them and change the law to adapt to the new conditions.