Parties to an offence and inchoate offences - Inchoate offences: attempt to commit an offence

Learning Outcomes

After studying this article, you will be able to explain the legal definition and elements of attempt under the Criminal Attempts Act 1981, distinguish between preparatory acts and acts sufficient for liability, identify the required mental state for attempts, and apply the law to scenarios involving impossibility. You will also be able to answer SQE1-style questions on attempts and avoid common pitfalls in this area.

SQE1 Syllabus

For SQE1, you are required to understand the law of inchoate offences, specifically attempts. Focus your revision on:

• the statutory definition of attempt and its elements (actus reus and mens rea)
• the distinction between acts that are merely preparatory and those that are sufficient for attempt liability
• the requirement of specific intent for attempts
• the effect of impossibility (factual and legal) on attempt liability
• the application of these principles to practical scenarios

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 an inchoate offence. It criminalises conduct where a person, with the intention to commit a crime, does an act that is more than merely preparatory to the commission of that offence. The law of attempt is governed primarily by the Criminal Attempts Act 1981. For SQE1, you must be able to identify when attempt liability arises, distinguish between preparatory and sufficient acts, and understand the effect of impossibility.

Definition and Elements of Attempt

The offence of attempt is defined in section 1(1) of the Criminal Attempts Act 1981:

"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."

This definition requires two elements:

• Actus reus: The defendant must do an act which is more than merely preparatory to the commission of the offence.
• Mens rea: The defendant must intend to commit the full offence.

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

Actus Reus: More Than Merely Preparatory

The actus reus of attempt requires an act that goes beyond mere preparation. The courts have developed guidance on where the line is drawn.

Key Term: more than merely preparatory An act is more than merely preparatory if it is a direct movement towards the commission of the offence, rather than simply getting ready or planning.

The distinction is fact-specific. Acts such as buying equipment or travelling to the scene are usually preparatory. Acts that form part of the execution of the offence, such as entering a building to commit burglary or pointing a weapon at a victim, are likely to be more than merely preparatory.

Worked Example 1.1

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

Answer:
Trying to force open the door is more than merely preparatory. The defendant has started to execute the offence. They may be guilty of attempted burglary.

Exam Warning

The distinction between preparation and execution is a common SQE1 trap. Always analyse the facts carefully. Acts that are only preparation (e.g., buying tools, travelling) are not enough for attempt.

Mens Rea: Intention to Commit the Full Offence

For attempt, the defendant must intend to commit the complete offence. This is a higher threshold than for many substantive offences, which may allow recklessness.

Key Term: specific intent (for attempt) The defendant must intend to bring about all elements of the offence, even if the completed offence allows for a lesser mental state.

If the full offence can be committed recklessly, attempt still requires intention. For example, attempted criminal damage requires intention to damage property, not just recklessness.

Worked Example 1.2

Scenario:
A person throws a brick at a window, intending to break it, but the window is made of unbreakable glass and does not break.

Answer:
The defendant intended to cause damage. Even though the window did not break, they may be guilty of attempted criminal damage.

Conditional Intent

A person may intend to commit an offence only if certain conditions are met (conditional intent). The courts have held that conditional intent is sufficient for attempt.

Key Term: conditional intent Conditional intent is where the defendant intends to commit an offence only if a particular condition is satisfied (e.g., intending to steal only if there is something worth taking).

Worked Example 1.3

Scenario:
A person enters a house as a trespasser, intending to steal if they find anything valuable.

Answer:
This is sufficient for attempted burglary. Conditional intent to steal is enough for attempt liability.

Impossibility and Attempt

A person can be guilty of attempt even if it is impossible to complete the offence, provided they believe the facts would make the offence possible.

Key Term: impossibility (in attempt) Impossibility refers to situations where, unknown to the defendant, the offence cannot be completed due to factual or legal reasons.

There are two types:

• Factual impossibility: The offence cannot be completed because of a factual mistake (e.g., the property is not there).
• Legal impossibility: The offence cannot be completed because, even if the defendant did everything intended, it would not be a crime.

Section 1(2) of the Criminal Attempts Act 1981 abolishes factual impossibility as a defence. A person can be guilty of attempt even if the facts make the offence impossible.

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 may still be guilty of attempted theft.

However, legal impossibility remains a defence. If the defendant believes they are committing a crime, but the act is not actually criminal, there is no liability for attempt.

Revision Tip

Always check whether the impossibility is factual or legal. Factual impossibility does not prevent liability for attempt, but legal impossibility does.

Summary Table: Attempt

Key Point Checklist

This article has covered the following key knowledge points:

• The offence of attempt is defined in the Criminal Attempts Act 1981.
• Attempt requires an act more than merely preparatory to the commission of the offence.
• The defendant must intend to commit the full offence; recklessness is not enough.
• Conditional intent is sufficient for attempt.
• Factual impossibility is not a defence to attempt; legal impossibility is.
• The distinction between preparatory and sufficient acts is fact-specific and often tested in SQE1.

Key Terms and Concepts

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