Introduction
Under criminal law, an attempt to commit an offence constitutes an inchoate offence where an individual, with the requisite intent, initiates actions that are more than merely preparatory towards the commission of a crime. The Criminal Attempts Act 1981 codifies the law relating to such attempts, delineating the necessary components of actus reus and mens rea required for liability. Understanding the layers of attempt law involves examining the statutory framework, key judicial interpretations, and the application of these principles to complicated factual scenarios.
The Legal Framework of Attempts
The Criminal Attempts Act 1981
The Criminal Attempts Act 1981 serves as the core basis of attempt law in England and Wales. Section 1(1) defines the offence of attempt:
"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, they are guilty of attempting to commit the offence."
This statutory provision establishes that liability for an attempt hinges on two main elements:
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Actus Reus: Engaging in conduct that goes beyond mere preparation.
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Mens Rea: Possessing the intent to commit the complete offence.
These elements must be satisfied concurrently for an individual to be guilty of an attempt.
Key Elements of Attempt
Actus Reus: Actions Beyond Preparation
The actus reus requirement mandates that the defendant's actions progress past the preparatory stage, entering the realm of execution of the offence.
Judicial Interpretations
Courts have grappled with defining the boundary between preparation and perpetration. In R v Gullefer [1990] 1 WLR 1063, the defendant attempted to disrupt a dog race to recover a bet. The Court of Appeal held that he had not initiated the crime proper, as his actions were merely preparatory.
In contrast, R v Jones [1990] 1 WLR 1057 involved a defendant who purchased a shotgun, sawed off the end, and pointed it at the victim in a car. The court concluded that these actions were more than merely preparatory, as the defendant had commenced the execution of the offence.
The 'More Than Merely Preparatory' Standard
Determining whether actions are more than merely preparatory requires an objective assessment of the defendant's conduct in the context of the intended offence. The actions must be immediately connected to the commission of the crime, forming part of a series of acts that would culminate in the offence unless interrupted.
Mens Rea: Intent to Commit the Offence
The mens rea for an attempt necessitates a specific intent to bring about the complete offence. Recklessness is insufficient unless it is the mens rea for the full offence.
Specific Intent Requirement
In R v Mohan [1976] QB 1, it was affirmed that for an attempt, the prosecution must prove that the defendant had the specific intent to commit the offence, regardless of whether the completed offence allows for a lesser mens rea such as recklessness.
Conditional Intent
Conditional intent arises when the defendant intends to commit an offence only if certain conditions are met. The court in Attorney-General's Reference (Nos 1 and 2 of 1979) [1980] QB 180 held that conditional intent suffices for an attempt, provided the defendant would proceed if the condition is fulfilled.
Example of Conditional Intent
An individual enters a warehouse intending to steal goods but only if valuable items are present. By breaking into the warehouse with this conditional plan, they demonstrate the requisite intent for attempted burglary.
Impossibility in Attempts
Impossibility, whether legal or factual, used to preclude liability for attempts under common law. However, the Criminal Attempts Act 1981 and subsequent case law have redefined this position.
Legal Impossibility
Legal impossibility occurs when the defendant's intended actions, even if completed, would not constitute a crime. Traditionally, this was a defence to an attempt charge.
Factual Impossibility
Factual impossibility involves circumstances where, unknown to the defendant, it is impossible to complete the offence due to a factual error.
Abolition of the Impossibility Defence
In the seminal case of R v Shivpuri [1987] AC 1, the House of Lords overruled previous authority and held that a person can be guilty of attempting the impossible. The defendant believed he was dealing with illegal drugs, but the substance was harmless. The court affirmed that impossibility is not a defence if the defendant has the requisite intent and has performed acts more than merely preparatory.
The Courts' Balancing Act
Courts strive to balance the need to protect society from criminal attempts with the principle that individuals should not be unjustly penalized for thoughts or preparatory actions that fall short of perpetration. This balance reflects the legal system's commitment to both societal protection and the principles of fairness.
Application of Principles through Scenarios
Examining practical scenarios demonstrates how these legal principles operate in real-world contexts.
Scenario 1: The Counterfeit Currency
An individual produces counterfeit currency intending to use it to purchase goods. Unknown to them, the counterfeit notes are poorly made and easily identifiable as fake. Despite the factual impossibility of deceiving anyone with the notes, they may be liable for attempting to pass counterfeit currency.
Scenario 2: The Empty Safe
A person plans to steal valuable items from a safe, believing it contains jewelry. They force the safe open, only to find it empty. Under the principle established in R v Shivpuri, they are still guilty of attempted theft, as their actions and intent satisfy the elements of attempt.
Interaction of Actus Reus and Mens Rea
The convergence of the defendant's intent and their actions is central in establishing liability for an attempt.
Case Illustration: R v Tosti [1997] Crim LR 746
In this case, the defendants approached a barn they intended to burgle and examined the padlock, but fled when they noticed surveillance equipment. The court held that their actions were more than merely preparatory, and their intention to commit burglary fulfilled the mens rea requirement.
Conclusion
Impossibility, whether stemming from legal or factual circumstances, does not exonerate individuals from liability for attempting to commit an offence, as affirmed in R v Shivpuri. The understanding of actus reus and mens rea in attempt law requires a thorough analysis of both the defendant's intentions and their actions that go beyond mere preparation.
Understanding these layers is essential for applying the principles of the Criminal Attempts Act 1981 to diverse factual situations. Proficiency in the key elements—intent that aligns with the full offence and actions that are more than merely preparatory—enables a comprehensive evaluation of attempt liability.
Detailed knowledge of judicial interpretations and statutory provisions is necessary for understanding the subtleties of attempt offences, a fundamental aspect of criminal law examined in the SQE1 FLK2.
