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  1. Attempts

  2. Need to know:

    • The law pre-1981
    • The Criminal Attempts Act 1981
    • The Actus Reus of attempts
    • The Mens Rea of attempts
    • Attempting the impossible
  3. R v White (1910)

    Q. Fill in the facts of this case from your knowledge of causation:

    White attempted to poison his mother but she died of a heart attack.

    Q. Explain why the defendant was guilty of attempted murder rather than murder.

    A. He had not caused her death but he did intend to kill her.

  4. The Rubicon Test

    Q. What is meant be the saying ‘crossing the Rubicon’?

    A. Passing the point of no return.

    Q. Did Widdowson cross the Rubicon?

    A. No. He had not posted the falsified documents.

  5. The Series of Acts

    This test says that an attempt is committed when the defendant does an act which would end up with the actual commission of the crime if it was not interrupted.

  6. The Last Act Test

    Q. Had Robinson done the ‘last act’ required to commit the offence?

    A. No, the Court of Appeal quashed his conviction. He was still to fill in the insurance claim and send it off.

  7. The pre-1981 Law

    • There were three tests for attempts before the Criminal Attempts Act 1981 was passed. You may notice that some of the cases mentioned were actually decided after 1981. The judges in these cases applied the old law rather than the 1981 Act. In R v Jones (1990), Taylor LJ stated that the courts should take the:
    • ‘natural meaning of the statutory words, not to turn back to earlier case law and seek to fit some previous test to the words of the section.’
  8. The Criminal Attempts Act 1981

    The law on attempts is contained in the Criminal Attempts Act 1981:

    Section 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.”

  9. The Criminal Attempts Act 1981

    Q. What is the advantage of leaving this decision to the jury?

    They can make a decision based on the facts of the case.

    Q. What is the disadvantage of leaving this decision to the jury?

    A. There may be inconsistencies between juries and no real guidance on when an attempt has occurred.

  10. R v Gullefer (1987)

    Q. Do you think his acts are ‘more than merely preparatory’?

    A. Held: The Court of Appeal overturned his conviction for attempted theft. They said that he had not gone beyond the preparatory stages, as he still had to go and ask for his money back from the bookmakers.

  11. R v Jones (Kenneth) 1990

    Q. At what point does Jones’ attempt begin?

    1. Buys a gun and shortens the barrel
    2. Loads the gun
    3. Leaves his house with the gun in a bag
    4. Approaches the victim’s car
    5. Gets into the back of the car
    6. Says he wants to “sort it out”
    7. Takes the gun out of the bag
    8. Points the gun and threatens the victim
    9. The victim knocks gun away and runs off
  12. R v Jones (Kenneth) 1990

    Q. At what point does Jones’ attempt begin?

    ‘once he had got into the car, taken out the loaded gun and pointed it at the victim with the intention of killing him’

    This is arguably still vague as to the exact act which made him leave preparation and become an attempt.

  13. R v Campbell (1991)

    Q. What criticisms does this case make about the law of attempts?

    A. This was a surprising decision as it means that an attempt was only possible when he had gone into the post office or even not until he approached the counter. This makes it very difficult for the police to gauge when an arrest can be made to secure a conviction for an attempt. The Law Commission 2007 proposed a new crime to be established called ‘criminal preparation’. This would allow for cases that do not reach the requirement of an attempt to still be considered a crime.

  14. R v Geddes (1996)

    Q. What criticisms does this case make about the law of attempts?

    A. The fact that Geddes is not guilty raises a lot of criticism. He is in a school, with a knife, hiding in a child’s toilet, yet the law in its present state does not regard his actions as an attempt. This case can be used to argue that the bar is set too high.

  15. R v Tosti (1997)

    Q. Is the ‘bar’ set too low in this case?

    A. The problem of where to set the ‘bar’ is a constant problem. If it is too high, it is too difficult to convict an attempt. If it is too low, the defendant does not have the opportunity to withdraw. In this case, it is necessary to convict attempted burglars early as the crime of burglary is completed the moment the defendant enters the building.

  16. R v Whybrow (1951)

    Q. The crime of attempted murder creates an anomaly in relation to the mens rea. Explain this anomaly below:

    A. If a terrorist who is torturing a prisoner shoots him in the kneecaps, he clearly intends to cause him serious bodily harm and if the victim dies there is nothing wrong in holding that the terrorist should be guilty of murder. However, if the victim does not die, it might sound odd to hold the terrorist liable for attempting to murder him because this would imply that the terrorist was trying to kill the victim, which he was not. This leads to the criticism that murder can be proved with a lesser mens rea than attempted murder. You would think that murder would be harder to prove as someone has actually died.

  17. R v Khan & Others (1990)

    Q. Was this a misdirection?

    A. No, the Court of Appeal upheld the conviction.

    Q. Is this a good decision?

    A. This is an example of creative interpretation of the law to ensure a conviction.

  18. Attorney-General’s Reference (No 3 of 1992) 1994

    Q. What is the mens rea for attempts?

    A. Intention to commit the full offence.

    Q. Apply the decision of R v Khan and Others to this case. Would a person who recklessly endangers life be found guilty?

    A. Only if the defendant intended to destroy the property by fire, the second part of the crime (endangering life) could be reckless.

  19. R v Walker & Hayles (1990)

    Q. What is the definition of oblique intent?

    A. ‘The jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty as a result of the defendant’s actions and that the defendant appreciated that such was the case.’

    (from R v Woollin)

  20. Haughton v Smith (1975)HL

    Q. Is this a fair decision?

    A. Class debate

    Q. If you steal an umbrella from the stand near the door in a cafe, would it be fair to convict you of attempted theft if it turned out that the umbrella was actually yours?

    A. Class debate (This is a crime since the Criminal Attempts Act 1981).

  21. Attempting the Impossible

    Section 1(2) of the Criminal Attempts Act 1981 states 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.”

  22. R v Shivpuri (1987)HL

    Q. Is this a fair decision?

    A. It may seem a bit harsh to charge someone with attempting an offences that they could not actually commit. However, this case follows parliament’s intentions so it is what the politicians want the law to be.

  23. R v Jones (2007)

    Q. Decide whether Jones is guilty by applying the law of ‘attempting the impossible’ to this case.

    A. The Court of Appeal upheld his conviction.

  24. Different ways to attempt the impossible

    Q. Which of these attempts will lead to a conviction and which will not?

    • Physically impossible – guilty.
    • Legally impossible – guilty.
    • Totally impossible – not guilty.
  25. Question 1

    Q. Why is it important for the criminal law to prosecute attempted crimes?

    A. If a defendant fully intends to commit a crime but for some reason fails to complete the actus reus, the law on attempts is available to ensure that they can be prosecuted. The rationale behind the law is that those who plan to commit an offence but fail deserve to be punished and its existence means that if the police are aware that an offence is going to be committed, they do not have to wait until it is complete before arresting the suspects.

  26. Question 2

    Q. How is an attempt defined?

    A. The law on attempts is contained in the Criminal Attempts Act 1981:

    Section 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.”

  27. Question 3

    Q. Who decides whether an act is “more than merely preparatory?”

    A. Since the Act does not define the phrase, this is a matter for the jury to decide in each case. The judge will firstly consider whether there is enough evidence to go before the jury but if so, it is entirely a matter of fact for them. It is up to them to decide whether the defendant has passed the preparation stage and progressed to something beyond that. Obviously, this is not an easy decision to make.

  28. Question 4

    Q. What happened in R v Tosti (1997)?

    A. The defendant along with another had oxyacetylene equipment which they hid in a hedge near to a barn that they planned to break into. They walked up to the barn door and examined the lock on it when they realised that they were being watched and ran away. On appeal, their convictions for attempted burglary were upheld as the Court of Appeal said that there was evidence that showed that they had gone being the preparatory stages and had actually tried to commit the offence.

  29. Question 5

    Q. What is the mens rea of attempt?

    A. In order to be liable, the statute states that the defendant must act with intent to commit an offence – thus the mens rea for an attempted offence is intention. For example, the mens rea for attempted murder is an intention to kill, an intention to cause GBH which would be sufficient for a murder conviction, will not be enough to make the defendant liable for attempted murder.

  30. Question 6

    Q. Can a person attempt the impossible?

    A. Yes, section 1(2) of the Criminal Attempts Act 1981 states 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.”

  31. Question 7

    Q. What happened in Anderton v Ryan (1985)?

    A. The defendant bought a video recorder that she believed to be stolen. After confessing this to the police, they found no evidence to show that the video had actually been stolen and the defendant was therefore charged with attempting to handle stolen goods. She was convicted but on appeal, the House of Lords quashed her conviction despite the fact that the wording of section 1(2) of the Act clearly made her guilty.

  32. Question 8

    Q. How was the decision in Anderton v Ryan (1985) rectified a year later?

    A. In the case of R v Shivpuri (1986) - The defendant was arrested after being found carrying a suitcase which he believed contained either heroin or cannabis. In fact, the substance was merely dried cabbage leaves. The defendant was convicted of attempting to be knowingly concerned in dealing in controlled drugs. His conviction was upheld by the Court of Appeal. On appeal to the House of Lords, they took the opportunity to correct the mistake made a year earlier in Anderton v Ryan. They used the 1966 Practice Statement to depart from their previous decision. The defendant was held to be guilty since he had clearly intended to commit the offence and had done an act which was more than merely preparatory to the commission of the offence.

  33. Question 9

    Q. What is the maximum sentence that a person convicted of an attempted crime can receive?

    A. If the defendant is found guilty, they will usually face the same maximum penalty that applies to the full offence.

  34. Question 10

    Q. Do you think that it is fair that the defendant can receive this penalty?

    A. Some have argued that the person convicted of an attempted offence should not face the same maximum penalty as someone who has actually committed the full offence since they are not as blameworthy. Those in favour of the current system argue that often a person will only fail to commit the full offence because they are caught beforehand or because something beyond their control occurs to prevent them. They claim that if the defendant intended to commit the crime then they are as blameworthy as the defendant who actually committed it and should therefore face the same sentence.

  35. Reform

    Q. If these new offences were introduced, look back over the cases and pick at least two that would be decided differently.

    • Gullefer, Geddes & Campbell could be convicted of criminal preparation.
    • Jones and Tosti would be criminal preparation rather than an attempt.
  36. Reform

    Q. How would you sentence these two offences?

    It would seem fair for ‘criminal preparation’ to receive a lesser sentence than an attempt. The sentence for an attempt could remain the same as the full offence or be less as in USA. The Law Commission suggest the sentencing for both offences should remain as anything up to the maximum for the full offence.

  37. Case List

    Make sure that you have filled in the Case List in your workbook or casebook.

  38. Revision

    • Start to prepare your revision notes.
    • Look at past exam papers and mark schemes.
    • For further research read a textbook, the A-level Law Review or look on the Internet.

    For revision, download the
    A2 LawQuiz app available on
    iTunes.

Attempts Workbook - OCR Slideshow

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