#14656 - Inchoate Offences - GDL Criminal Law

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Attempt

Rationale: what is an attempt?

• Criminal Attempts Act 1981, 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".

No crime of attempting to aid and abet another person (R v Dunnington)

No crime of attempting involuntary manslaughter, because this is an offence specifically without an attempt to kill

Actus Reus

Old Law

The difficulties at common law with the ‘last act’ test which required that D had done the last action required on their part – this was viewed as very generous to D

Comer v Bloomfield

Fraudulent insurance claim

Held: merely preparatory actions

R v Bowles

Attempted defrauding of a will

Held: hadn’t been sent to the solicitor, so it was deemed preparatory

R v Stonehouse

• Lord Diplock, for the conduct part of inchoate liability, the threshold is whether D “has …crossed the Rubicon and burnt his boats”

Use of the ‘first act of a series’ test:

R v White

Son started to poison his mother who then died from an unrelated heart attack

Held: attempted murder, as D committed the 1st act in the series towards the commission of the offence

New Law

Based on the Report of the Law Commission, No 102. Report on Attempt, and Impossibility in relation to Attempt, Conspiracy and Incitement (1980)

S.1 Criminal Attempts Act

(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.

Section 6(1):

The offence of attempt at common law and any offence at common law of procuring materials for crime are hereby abolished for all purposes not relating to acts done before the commencement of this Act.

Section 4(3):

"Where, in proceedings against a person for an offence under section 1 above, there is evidence sufficient in law to support a finding that he did an act falling within subsection (1) of that section, the question whether or not his act fell within that subsection is a question of fact".

• Trial judge can only withdraw from the jury if there is no evidence – must leave it to the jury is there is some (albeit with a strong indication if evidence is very weak)

“More than merely preparatory”

• “natural and ordinary meaning of the words themselves”

R v Gullefer

Mr Gullefer jumped onto a dog racing track to get the race null & void as his dog was failing. This was in order to recover his stake

Held: merely preparatory, as there was far more that he needed to do - he needed to get it declared a no race, he had to present his ticket & try to reclaim his money

• “begins when the merely preparatory acts come to an end”

• Lord Lane, has D “embarked upon the crime proper” Are they “on the job”. In every case, it is a question for the jurors as a question of fact and degree

R v Jones

D’s mistress rejected him for another man, so he jumped into this man’s car with a shotgun

Held: enough evidence to leave the offence to the jury, despite the fact he had to remove the safety catch, put his hand on the trigger & pull it

• "Clearly, the appellant's actions in obtaining the gun, in shortening it, in loading it, in putting on his disguise, and in [lying in wait] could only be regarded as preparatory acts. But, in our judgment, once he had got in to the car, taken out the loaded gun and pointed it at the victim with the intention of killing him, there was sufficient evidence for consideration of the jury on a charge of attempted murder".

R v Campbell

Mr Campbell was nearly apprehended 1 yard from the doors of a post office. On his possession was found an imitation fire gun; fake sunglasses; and a threatening note.

Held: (CA) all of these actions were simply preparatory actions, and he hadn’t entered the criminal arena i.e. he was not ‘on the job’

This received much criticism from prosecuting authorities

R v Griffin

Mother who had 2 kids in care, and she wanted to take them to the Republic of Ireland. She had bought single ferry tickets to Ireland. She rang up the school & spoke to the kids’ school teachers, and told them she had to take the kids to the dentist

Held: liable for the attempt of child abduction, as her acts in phoning the school were deemed more than merely preparatory

AG's Ref (No 1 of 1992)

Charge of attempted rape. Both parties had been drinking & D dragged V behind a hedge. She was found on her back with signs of attempted rape including bruising around her groin

Held: no need to show for attempted rape and attempt to try and penetrate the victim. Here, then, there was sufficient evidence for the offence

May be a contradiction in terms; if he didn’t attempt to penetrate, but did attempt to rape?

R v Geddes

D charged with attempted false imprisonment. Mr Geddes was apprehended in the toilets of a school- in his possession was found to be string, tape and a knife.

Held: hadn’t succeeded to the area of implementation & execution, but only preparation

R v Tosti

D charged with attempted burglary from a farm’s outbuilding. D had examined the lock to the building & had some cutting equipment nearby. He ran away once he noticed himself being watched by the owners

Held: had gone beyond preparation as he was ‘on the job’. There was no defence of withdrawal because it wasn’t genuine (he’d already embarked on the crime)

Mens Rea

Intention

S.1 seems to suggest only intention as a sufficient fault element – however the case law has developed beyond intention where the fault element for the attempted offence is lower.

R v Whybrow

D tried to electrocute his wife whilst in the bath, but she didn’t die

Held: for attempted murder, the fault element is only an intention to kill. D must intend the full consequences of the attempted crime – D must intend to kill and not just to cause GBH for attempted murder

R v Mohan

• "a decision to bring about, in so far as it lies within the accused's power, the commission of the offence which it is alleged the accused attempted to commit ..."

Oblique intent:

R v Walker & Hayles

V had been engaged in an affair with Walker’s sister which had ended badly. D dropped V out of a 3rd floor building

Charged with attempted murder; the trial judge directed the jury about direct & oblique intention. They spoke about this, perhaps mistakenly, as a case about oblique intent, and therefore directed as to whether there was foresight of a high probability of risk of death

Held: (CA) not a misdirection - intention being foresight of a high probability of risk. However, for oblique intention, the rule now is found in Woollin and must be virtual certainty.

Recklessness

Recklessness as to the consequences of an attempt is not sufficient:

Millard and Vernon

Held: for criminal damage, intention is required for the conduct which then causes the criminal consequences

However recklessness as to circumstances will suffice if it satisfies the mens rea requirement for the underlying substantive offence:

R v Khan

Attempted rape

Held (CA) the court recommended looking to the offence and breaking it down into the two elements. Intentional penile penetration without consent constitutes rape. The consent part is a circumstance attached to the crime of rape, so for the conduct part D has to intend it. For the circumstance part, whatever satisfies the offence will satisfy the attempted offence.

AG's Ref (No. 3 of 1992)

D had gone to a factory and they had thrown a petrol bomb at the night watchman, but it didn’t harm him. Were they liable for attempted aggravated criminal damage (intentionally/recklessly destroying property and thereby endangering the life of another person)

Held: separated intention as to destroying property, and recklessness for endangering the life of another person.

The principle to take from this case is that, where a crime has multiple mens rea elements (here intention for destruction of property and recklessness for endangering life), D must

(1) match the mens rea for the substantive offence

(2) intend the necessary element of the actus reus

Pace and Rogers

Scrap metal dealing whom the police were suspicious of because they thought they were going to buy metal & melt it and sell it on. Undercover officers approached them and they offered to sell them metal which they insinuated might be stolen property. They bought the metal.

Charged with attempt of concealing stolen property

Held: (CA) charges had to be dismissed because D did not possess the requisite mens rea for an attempt to conceal stolen property. For this offence it had to be shown that they intended to conceal criminal property when they purchased the metal. In terms of fault, it was not sufficient for Ds to merely suspect that it was stolen

Criminal Damage Act 1971:

Section 1(2)

(2) A person who without lawful excuse destroys or damages any property, whether belonging to himself or another-

(a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and

(b) intending by the destruction to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence.

Para 62: intention must be shown to commit every single element of the offence

However, applying this dicta to R v Khan, it would require intention as to non-consentual penetration. Inconsistency of approach.

Conspiracy

It is the...