Parties to an offence and inchoate offences - Inchoate offen...

Learning Outcomes

This article examines liability for attempted offences under the Criminal Attempts Act 1981, including:

• Actus reus and mens rea for attempt
• The threshold between merely preparatory and more-than-preparatory conduct
• The fact-specific nature of the preparation–execution distinction and judicial approaches to interpreting it
• Conditional intent and the primacy of intention over recklessness
• Effects of factual and legal impossibility
• Practice-oriented guidance for applying attempt principles to complex criminal scenarios
• Common pitfalls at the intersection of attempt liability and completed offences
• Statutory exceptions and the scope of offences capable of being attempted
• Procedural, evidential, and ethical considerations relating to charging, evidence, and defences

SQE1 Syllabus

For SQE1, you are required to understand attempt as an inchoate offence, with a focus on the following syllabus points:

• the statutory basis of attempts under the Criminal Attempts Act 1981, including its definitional scope and relevant sections (notably ss 1–4)
• the essential elements: actus reus (act more than merely preparatory) and mens rea (intention to commit the full offence)
• how the courts distinguish between acts that are merely preparatory and those that are sufficiently proximate to the intended offence
• the application of the law to conditional intent and situations involving impossibility (factual or legal), including the implications of sections 1(2) and 1(3)
• how and when an act of attempt may be committed, and the procedural relationship between attempts and full offences
• the specific types of offences to which attempt liability applies (including statutory exclusions)
• relevant and current UK authority for the concepts of direct and oblique intention, conditional intent, and the intersection between attempts and secondary liability
• practical and professional issues arising at charge, plea, trial, and in consideration of evidence

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. What is the statutory definition of attempt under the Criminal Attempts Act 1981?
2. What is the difference between a merely preparatory act and an act sufficient for attempt?
3. Can a person be guilty of attempting the impossible? Explain with reference to the law.
4. What mental state is required for liability for attempt?

Introduction

Attempt is a central inchoate offence in English criminal law, ensuring that those who take substantial steps towards the commission of a crime but are unsuccessful—or are interrupted—do not escape liability simply because their plan is thwarted. The doctrine of attempt addresses both the policy imperative to prevent criminal conduct before its harmful effects occur and the principle of proportional punishment for harm averted by circumstances outside the defendant's control. The principal authority is the Criminal Attempts Act 1981 (CAA 1981). To determine liability, one must carefully break down the actus reus and mens rea, distinguish acts of mere preparation from sufficient execution, and resolve complex questions of intention, circumstance, and impossibility.

Key Term: attempt
Attempt is an inchoate offence constituted where, with intent to commit an indictable offence, a person does an act which is more than merely preparatory to its commission.

Definition and Elements of Attempt

Section 1(1) of the Criminal Attempts Act 1981 provides:

"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."

Each offence of attempt consists of:

• Actus reus: The defendant must perform an act more than merely preparatory to the commission of the relevant offence.
• Mens rea: The defendant must intend to commit the full offence, requiring proof of direct or oblique intent (subject to particular points explained below).

The Act covers attempts to commit any indictable offence, including those triable either way, but expressly excludes certain offences (e.g. summary-only offences—see s 1(4)). For certain offences, attempt liability may also be limited or shaped by the breadth of the substantive offence or explicit statutory exception.

Key Term: more than merely preparatory
An act is "more than merely preparatory" if the defendant has begun the actual commission of the intended offence, crossing the threshold from preparation into execution.

Actus Reus: More Than Merely Preparatory

A defining feature of attempt liability is the transition point between mere preparation and perpetration. There is no universal rule for pinpointing when conduct crosses this line; it is a matter of fact and degree, informed by statutory language and judicial interpretation.

The courts have articulated various approaches, but the consensus is that:

• Acts such as planning, equipping, or travelling to the scene are usually preparatory.
• Acts that form part of the attempted commission (such as entering a building to commit burglary, pointing a weapon at a target, or beginning to effect the criminal result) are more than merely preparatory, and thus sufficient for attempt.

The judge determines whether, as a matter of law, there is evidence capable of amounting to an attempt, and the jury then decides whether the facts fit the threshold in the given case.

Judicial authorities (post-1981) illustrate the boundaries:

• In R v Jones [1990], the defendant bought a shotgun, sawed off the barrel, loaded it, and entered the victim's car, at which point he pointed the gun at the victim. The Court of Appeal held the latter conduct was more than merely preparatory.
• In R v Campbell [1991], the defendant stood outside a post office with the intention to rob, having equipped himself with a gun and a threatening note, but was apprehended before entering the premises. This was held to be merely preparatory.
• R v Geddes [1996] involved a defendant found in a school lavatory with a kit for kidnapping but had made no approach to a potential victim. This was not more than merely preparatory.

Courts have suggested asking: Has the defendant moved from planning or preparation to actual execution? Has the defendant performed an act showing that they are "on the job", rather than simply getting ready?

Worked Example 1.1

Scenario:
D buys a crowbar, drives to a jewellery shop at night, puts on gloves, and tries (unsuccessfully) to force open the shop door with the crowbar but is disturbed and flees.

Answer:
Trying to force open the door is an act more than merely preparatory. D has crossed the preparatory threshold and started to execute the offence; D may be guilty of attempted burglary.

The question of whether an act is more than merely preparatory will always be determined with regard to all the circumstances, the defendant's conduct, and the proximity to completion of the intended crime.

Exam Warning
The distinction between preparatory and execution is frequently tested—and subtle. For instance, merely reconnoitring the scene, obtaining tools, or making arrangements, will seldom suffice; the defendant must begin the commission, not just ready for it.

A supplementary consideration is that attempt cannot be committed by omission—there must be a positive act, as the wording of the CAA 1981 ("does an act") indicates. While there are exceptional authorities and calls for reform, the current position is that mere failure to act is not sufficient for liability.

Mens Rea: Intention to Commit the Full Offence

The mental element required for attempt is more exacting than for many completed offences. Attempt liability only arises where the defendant intends to bring about the circumstances and results required for the principal offence.

• Direct or oblique intention: The defendant must intend the essential elements of the offence—the result and the circumstances—either as their direct aim or (if appropriate) with foresight that the consequence is virtually certain.
• If the full offence can be committed recklessly (e.g., criminal damage), the attempt requires proof of intention, not mere recklessness.

The principal authority is that nothing short of intention will suffice. For example:

• R v Whybrow [1951]: Attempted murder requires intention to kill, not merely intention to cause grievous bodily harm (GBH).
• R v Toole [1987]: Where the substantive offence permits recklessness, attempts demand intention.

Oblique intention (where the consequence is a virtual certainty and the defendant appreciates this) is sufficient. However, mere recklessness will never suffice for the elements that are central to the commission of the offence (unless recklessness is an element as to a collateral fact, not the ultimate result).

Some offences have multiple elements, not all of which need to be intended; for certain circumstances or consequences, recklessness may suffice if it would do so for the completed offence. For example, attempted rape requires an intention to have sexual intercourse, but recklessness as to the complainant's lack of consent may suffice, mirroring the substantive offence (R v Khan [1990]).

Key Term: specific intent (for attempt)
In the context of attempt, the law requires the defendant to intend to bring about the result that the full offence defines—a higher (specific) threshold than may be required for the substantive crime.

Worked Example 1.2

Scenario:
P throws a brick at a window, intending to break it. The window is, unknown to P, made of unbreakable glass and does not break.

Answer:
P intended to cause damage. Although the window did not break, the act (throwing the brick with intent to break the window) constitutes an attempt at criminal damage.

It is important to distinguish attempt liability from accessory or secondary liability. Attempt requires subjective intention towards commission of the offence, not passive assistance or encouragement.

Conditional Intent

Sometimes defendants act with a "conditional intent"—for example, intending to steal only if there is anything worth taking.

Courts have held that conditional intent satisfies the mens rea for attempt and defendants can be convicted accordingly. This principle is particularly relevant for "attempted theft" or "burglary with intent to steal".

• R v Easom [1971]: Initially, a literal reading suggested that conditional intent was not sufficient. Later, this position was clarified—conditional intent is acceptable provided the statutory language covers it.
• Attorney General’s References (Nos. 1 and 2 of 1979): A person who breaks in intending to steal "anything worth stealing" can be convicted of attempted theft or burglary.

Key Term: conditional intent
A defendant has conditional intent when their intention to commit the offence depends on a precondition (e.g., "I will steal if there is anything worth taking").

Worked Example 1.3

Scenario:
Q enters a house as a trespasser, intending to steal if valuables are found.

Answer:
Conditional intent to steal is sufficient for attempted burglary. The law recognises that entering intending to steal "if valuables are available" meets the mens rea for attempt.

Impossibility and Attempt

A central feature of modern attempt law is its treatment of impossibility. The CAA 1981, s 1(2), states that a person "may be guilty of attempting to commit an offence ... even though the facts are such that the commission of the offence is impossible".

Key Term: impossibility (in attempt)
Impossibility arises where the defendant, intending to commit an offence and acting with the requisite mental state, fails only because, unknown to them, the circumstances render their objective factually or legally impossible.

There are two main types:

• Factual impossibility: The commission of the offence is physically or factually impossible (e.g., picking an empty pocket, stealing non-existent property, or firing at a corpse one believes to be alive).

  • Factual impossibility is not a defence; the law asks whether the defendant believed the facts as they thought them to be would constitute an offence, and if so, they are guilty of attempt.

• Legal impossibility: The commission of the offence is legally impossible—even if the defendant did everything they intended, it would not be a criminal offence (e.g., shooting at a stuffed animal believing it is real, or attempting to import a substance believing it is illegal when it is not).

  • Legal impossibility remains a defence to attempt. Section 1(2) does not extend attempt liability to acts that would not be an offence even on the defendant's understanding of the facts.

Section 1(3) provides further: where a person’s intent and belief is such that, if the facts of the case had been as they believed, the defendant would be committing a crime, the law treats the case according to those assumed facts.

Case illustration:

• R v Shivpuri [1987]: D was convicted of attempting to deal in controlled drugs, even though the substance in their possession was not a prohibited substance. The conviction was upheld; factual impossibility is not a defence.

Worked Example 1.4

Scenario:
A person tries to pickpocket someone, believing there is a wallet in the pocket, but the pocket is empty.

Answer:
This is factual impossibility. The defendant believed, wrongly, that there was property to steal and committed an act which would, had the facts been as they believed, amount to theft. Accordingly, attempted theft is made out.

A further example is where someone shoots into a room, believing a person is present and seeking to kill them, but the person is not present—the defendant may nonetheless be guilty of attempted murder.

Legal impossibility, however, bars liability. For example, if a person believes they are committing an offence by engaging in conduct which is, in fact, perfectly lawful under UK law, they cannot be convicted of attempt—even if they believed it to be illegal.

Revision Tip
Always distinguish between factual and legal impossibility. Factual impossibility does not preclude liability for attempt, but legal impossibility does. Check the offence carefully: if the acts, as the defendant believed them, would not have amounted to a crime under UK law, there is no liability.

Procedural and Related Issues

• Omissions: As noted above, an attempt cannot currently be committed by omission. The statutory wording "does an act" (CAA 1981, s 1) and authorities such as R v Nevard [2006] support this view.
• Charging an attempt: Where the prosecution is not able to prove actual commission of the full offence, but evidence supports the necessary elements of attempt, the appropriate charge is attempted rather than the complete offence. However, a person cannot be convicted for the full offence and the attempt in respect of the same conduct (CLA 1967, s 6(3)-(4)).
• Withdrawing before completion: Once a defendant has performed an act which is more than merely preparatory, withdrawal or abandonment is no defence to attempt—liability is already established, though it may be relevant to mitigation at sentence.

Types of Offences Capable of Being Attempted

The CAA 1981 applies to all indictable offences (including either-way offences). Not all summary only offences are capable of being attempted unless expressly provided by statute. Certain statutory exclusions apply, including attempts to commit conspiracy or to aid, abet, counsel, or procure (see CAA 1981, s 1(4)). Notably, some offences of a wholly preparatory nature, or those premised on omission, will not support attempted liability.

Attempt in the Context of Other Inchoate and Accessory Liability

Attempt is distinct from other forms of inchoate and secondary liability (such as conspiracy, encouragement, and assistance under the Serious Crime Act 2007, and secondary participation as an accessory under the Accessories and Abettors Act 1861). However, a single set of facts may give rise to overlapping or alternative charges (e.g., a failed fraud plus attempt to defraud; accessory plus attempt).

Key Term: inchoate offence
An inchoate offence is one that criminalises acts which are preliminary to, or preparatory for, the commission of a substantive offence, such as attempt, conspiracy, or encouraging/assisting.

Summary Table: Attempt

Key Point Checklist

This article has covered the following key knowledge points:

• The offence of attempt is primarily governed by the Criminal Attempts Act 1981.
• Attempt requires the defendant to do an act which is more than merely preparatory to the commission of the substantive offence.
• The court draws the line between preparation and perpetration by reference to all facts—the defendant must at least have commenced the execution of the crime proper.
• The mens rea for attempt is intention to commit the full offence—even where the completed offence may be committed recklessly.
• Oblique intention may be sufficient where the result is a virtually certain consequence, and the defendant foresees this.
• Conditional intent is sufficient for attempt: intending to commit the offence if a specific circumstance is present is adequate.
• Factual impossibility (believing one can commit the act, but it is impossible for factual reasons) is not a defence to attempt; legal impossibility (the act is not actually criminal even if fully carried out) is a defence.
• Attempt cannot be committed by omission—acts, not failures to act, are required.
• Procedural rules prevent a defendant being convicted of both a completed offence and the corresponding attempt.
• Withdrawal after crossing the threshold to attempt is not a defence but may be relevant for mitigation.
• Attempt is to be distinguished from other forms of inchoate and accessorial liability in terms of actus reus and mens rea prerequisites.

Key Terms and Concepts

• attempt
• more than merely preparatory
• specific intent (for attempt)
• conditional intent
• impossibility (in attempt)
• inchoate offence