Written by Emma McAvoy - Click here to see the essay plan
In this essay I will explain the problems found with the law on attempt including reference to the mens rea and actus reus. This will also include the definitions of the two terms for attempt from the statutes and the relevant cases that have been decided regarding the issue. I will then examine the problems that have arisen as a result and suggest possible solutions to them and discuss them in detail. I will also look at any conflicts on the law in relation to attempting to commit an impossible crime and consider suggested reform of inchoate offences if relevant to attempt.
The information about the actus reus required to commit an attempt is found in section 1 (1) of the Criminal Attempts Act (1981). This states that the actus reus is committing an act/s that are more than preparatory towards the commission of the offence. This act codified the law on attempt and did therefore improve the law in this area.
However the main problem with this statute is not the definition of the actus reus, but that there is no definition included to tell judges and juries what preparatory acts are and what is considered to be more than preparatory. This means that there is only common law to follow on this matter in the cases that have been decided on this area.
Before codification of the law there were some definitions but they were not incorporated into the statute. In Davey v Lee (1968) it was stated that acts taking a step towards commission of the crime (specific) that were immediately, not loosely connected were preparatory acts leading to an attempt.
Then in Eagleton (1855) - approved in DPP v Stonehouse (1978) - it was said that acts not directly leading to commission of the crime are not attempts but acts immediately connected are.
These definitions no longer exist under the statute and there is no doubt that the legal system could be more effective in this area if some guidelines were created to help with defining and pinpointing acts that are more than preparatory other than the cases discussed below (preferably statutory). Also the views in these different cases over time may have changed and judges / juries may interpret definitions differently or create their own different ones to follow in a case.
Examining the cases that were decided on attempt regarding preparatory acts there were not actually any cases that resulted in conviction for attempt based on acts that were more than preparatory towards the crime. The first case did result in a conviction for attempt but this was only sustained based on the sufficient intention not the fact that the acts were more than preparatory.
This was Jones (1990) when a man could not bear that his ex had a new relationship with another man. He bought a gun and shortened the barrel. He then put on a disguise and went to where he knew the victim would be and got into his car. He aimed the gun at him, but the victim managed to escape the scene. The acts committed were not more than preparatory, as he still had to remove the safety catch for example. However on the grounds that Jones had obvious intention to kill the victim when pointing the gun at him he was convicted of attempted murder. This is the only conviction out of the cases to discuss, and it is not as helpful in clarifying what are and are not more than preparatory acts.
However the decision in this case can be criticised because it contradicts the Criminal Attempts Act in Section 1(1) where the definition of attempt is intention to commit the crime plus doing an act/s that are more than preparatory to the commission of this offence. In this case he defendant was convicted with just one of these elements proven not both. It could then be said that the conviction in this case should not have been upheld and that this case should not be followed in future.
Then in Gullefer (1990) a man had bet on a dog race but the dog he had chosen was not winning. In a bid to get his money back he tried to distract the dogs and have the race declared void. This was not successful and it was decided that he was not guilty of attempted theft because the acts undertaken were not more than preparatory towards commission of the offence. It seems he would probably not have been guilty until he had actually gone and tried to claim his money back.
In the case of Campbell (1991) a man was planning a raid on a post office and was arrested walking towards the post office in disguise with an imitation firearm. It was held that his acts were not more than preparatory towards committing the offence because he had not threatened anyone or tried to take any money yet. He was not found guilty of attempted armed robbery.
Then in Geddes (1996) a man was found in the boysí toilets of a school - he was chased away but left a bag containing ropes, a knife and some masking tape. His conviction for attempted false imprisonment was quashed because the acts were not more than preparatory towards the crime.
These cases were all decided based on the Criminal Attempts Act Section 1 (1) definition of the actus reus. However the fact that there is no definition of what is more than merely preparatory included means that these cases may have been decided wrongly / unfairly and may lead to inconsistencies between decisions and / or courts in deciding whether someone has committed the actus reus of attempt.
There could also be a criticism of the fact that someone cannot be found guilty of an attempt until they have tried to commit the act - it could be argued that someone who has obviously begun to prepare for the commission of an offence should be charged with something, even if not attempt, as this could raise confidence about safety. It would not cause a victim of crime to have confidence in the law and its ability to protect if the perpetrator had not been found guilty because a conviction could not be sustained from the lesser acts that were carried out.
Problems related to the mens rea of attempt
The mens rea for an attempt is described in Section 1 (1) of the Criminal Attempts Act as intention to commit the actual crime in question. This must be found in conjunction with committing acts that are more than preparatory towards commission of the offence to sustain a conviction. (However see Jones 1990 above).
It has been stated that recklessness is not sufficient for the mens rea of attempt in Millard and Vernon (1987). In this case the two football supporters pushed against a wooden fence at a football ground and were charged with attempted criminal damage. They were convicted but appealed that there was a misdirection regarding proof of intention to cause damage together. They said that their recklessness was not enough to sustain their convictions and the Court of Appeal agreed even though recklessness sufficed for the full offence. The convictions of both defendants were quashed.
The test for establishing intention was first described in Mohan (1976) which stated that it was a decision to bring about, as far as within the defendants power, the commission of an offence which they attempted to commit, regardless of whether they desired the consequence or not. This was before the Criminal Attempts Act (1981).
Then in Woollin (1998 on appeal) the words highly probable were decided to be inadequate - only foresight of the consequences as being virtually certain would be sufficient. The Law Commission said that intention should be proved for all attempts for all parts of the offence.
However this has not always been followed especially in the offences of attempted rape and attempted arson. In the case of Khan (1990) the defendants were accused of attempting to rape a 16-year - old girl and they claimed they did not know she was not consenting. It was held that the mens rea for this offence was the same as for the actual full offence. This meant that recklessness could sustain the conviction - they were reckless to the fact that she did not consent.
Then another important decision was made in the Attorney Generals Reference (no. 3 of 1992) 1994 when the offence was attempted arson including recklessness about endangered life under the Criminal Damage Act. The defendants were acquitted because it was stated that intent to endanger life was required for an attempt and that recklessness was not enough. However the Court of Appeal then said that this was wrong and that if the defendants were in a state of mind that could suffice for the full offence then the convictions could be upheld.
Therefore in the mens rea of attempt intent has to be established for committing the actual crime and recklessness can be enough in relation to the circumstances if it suffices for the full offence. This however only seems to apply in cases of attempted rape and attempted aggravated criminal damage.
These decisions can be criticised, as it seems that the courts have decided to in theory change what Parliament have said. With all other crimes the courts have stood by the decision that only intention to commit the crime will be sufficient for the mens rea of attempt but in these cases they seem to have gone against this - both themselves and Parliament. These decisions could therefore be seen as inconsistencies in the court system. This could also be a problem for juries and it seems that this could be fixed by either changing the mens rea for attempt to make it the same as for the actual offence in all cases or overrule the decisions in Khan and the Attorney Generals Reference no. 3 of 1992.
There is also an option to just accept the different treatment of these crimes. The Law Commission had agreed with the idea of saying intention had to be found for all parts of a crime but have now accepted the changes from case law such as those decisions above.
In the case of Haughton v Smith (1975) before the Criminal Attempts Act (1981) some stolen goods were seized but the transportation was allowed to continue and the people unloading the goods were arrested for attempting to handle stolen goods. However as the crime was technically impossible the House of Lords decided that the conviction could not be sustained.
However then the Criminal Attempts Act (1981) section 1 (2) said that a person could be guilty of committing an impossible crime. This contradicts the decision in Haughton v Smith and the later case of Anderton v Ryan (1985). In this case the defendant had bought a cassette recorder thinking that it was stolen and was charged with handling and attempted handling of stolen goods. Then it was decided that there was not any proof that the goods were stolen and so the first charge was dropped.
The House of Lords said that it would be unfair and unjust to convict the defendant in this situation regardless of what was said in the Criminal Attempts Act. This seems to follow Haughton v Smith in contrast to the statute regarding attempt.
However in conjunction with the Criminal Attempts Act (1981) and against the two previous cases it was stated in the case of Shivpuri (1987) that the defendant was guilty. He had agreed to smuggle a case of drugs abroad, selling them on in return for money and was arrested after being observed handing a packet of the substance to a third party.
Surprisingly the packets were found to contain a harmless vegetable like substance not drugs - therefore the crime was technically impossible to commit. The House of Lords said that if he intended to commit the full offence and believed it was possible to do so, but unknown to him the actual facts made the offence impossible to commit, he had committed an offence under Section 1(1) of the Criminal Attempts Act.
Then it was said that if he intended to receive, store and pass the drugs and did an act which was more than preparatory towards committing the offence, then he could be guilty of attempting to commit the impossible under section 1 (2) of the Criminal Attempts Act (1981) because nothing else was needed to sustain the conviction.
Then following this decision the Practice Statement of 1966 was used to overrule the decision in Anderton v Ryan (1985) allowing them to convict in Shivpuri. This clearly shows that someone can be guilty of committing an impossible crime but reveals flaws and inconsistencies in earlier House of Lords decisions.
There is currently no suggested reform for attempt under reform of inchoate offences, which could suggest that the law is seen as satisfactory although examining all the discussion above it would seem that it is not yet without criticism.
Therefore in conclusion it seems that there are many problems with the law in the area of attempts and these should be addressed in suggested reform of inchoate offences as well as the other two inchoate offences.