Core principles of criminal liability - Inchoate offences (A...

Learning Outcomes

This article explains the core principles of criminal liability for attempts as a form of inchoate offence, covering:

• The statutory definition of attempt under the Criminal Attempts Act 1981 and which offences are capable of being attempted
• The “more than merely preparatory” threshold, how courts distinguish preparatory acts from beginning the crime proper, and how this is applied in case-law-style scenarios
• The strict intent requirement for attempts, including element-by-element mens rea analysis, the role of recklessness for circumstance elements, and the operation of conditional intent
• The law on impossible attempts, distinguishing factual from legal impossibility and the effect of s 1(2) Criminal Attempts Act 1981
• The limits of attempt liability, including the bar on attempting summary-only offences (subject to statutory exception), the prohibition on “attempting to attempt” or “attempting to aid or abet”, and the irrelevance of withdrawal once the actus reus is complete
• Practical techniques for analysing SQE2-style problem questions involving attempt, mapping the elements of the substantive offence to attempt liability and evaluating likely outcomes

SQE2 Syllabus

For SQE2, you are required to understand attempts as a specific form of inchoate liability, identify when an attempt arises, advise on whether liability for attempt is established on given facts, and distinguish attempts from mere preparation or from completed offences, with a focus on the following syllabus points:

• The legal definition of an attempt and what offences are capable of being attempted
• The 'more than merely preparatory' test and the types of acts that will (and will not) suffice
• The requirement of intent for attempts and how this differs from completed offences
• Impossibility in attempts (factual and legal) and the outcome under the Criminal Attempts Act 1981
• Element-by-element mens rea for attempts to conduct/result/circumstance offences
• Statutory exclusions and the prohibition on “attempting to attempt” or “attempting to aid or abet”

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 main legal test used to decide whether a defendant’s conduct amounts to an attempt?
2. Which forms of mens rea are sufficient for attempt: intention only, or can recklessness also suffice?
3. Can impossibility be a defence to a charge of attempt in English law? What is the position for factual versus legal impossibility?
4. A person tries to steal from an empty safe, believing there is money inside. Is this an attempt?

Introduction

This article examines the key principles governing liability for attempts, a core inchoate offence for SQE2. Attempts criminalise conduct which is close to, but falls short of, the full offence. The law on attempt is mainly found in the Criminal Attempts Act 1981. You must understand what kinds of acts go beyond preparation and amount to attempt, what level of intent is necessary, and how the law treats impossible attempts.

Key Term: inchoate offence
An offence criminalising steps taken towards the commission of a substantive crime, even if the substantive crime is not completed.

Key Term: attempt
When a person, with intent to commit an offence, does an act which is more than merely preparatory to committing the offence.

Key Term: more than merely preparatory
The statutory threshold in the law of attempt; acts that show the defendant has started the actual commission of the crime itself, not just planning or preparation.

Key Term: impossibility
In the law of attempt, this refers to situations where completion of the full offence is impossible as a matter of fact or law; treatment under s 1(2) Criminal Attempts Act 1981 differs depending on type.

What is an Attempt?

The offence of attempt exists to impose liability on those who move beyond planning and try to commit a substantive crime, even if they do not succeed for any reason.

Key Term: substantive offence
The principal criminal offence that the defendant intended to commit.

Section 1(1) of the Criminal Attempts Act 1981 sets out the basic definition:

A person is guilty of attempting to commit an offence to which this section applies if, with intent to commit that offence, they do an act which is more than merely preparatory to the commission of the offence.

Key points embedded in this definition:

• The actus reus is an act which is more than merely preparatory.
• The mens rea is intent to commit the full offence (subject to limited exceptions for circumstance elements).
• The offence must be one to which s 1 applies (i.e. an indictable offence or an either-way offence), unless a statute specifically creates an attempt form for a summary offence.

When Can an Attempt Be Charged?

• Attempts are available for indictable-only and either-way offences. Summary-only offences cannot generally be attempted unless a statute specifically provides otherwise.
• Low-value shoplifting under s 22A Magistrates’ Courts Act 1980 is treated procedurally as a summary-only offence, but it remains theft under s 1 Theft Act 1968. Because it is still theft, an attempted low-value shop theft can arise on appropriate facts.
• There is no attempt to attempt, and no attempt to aid, abet, counsel or procure (s 1(4)(a)-(b) Criminal Attempts Act 1981). The proper route for inchoate liability involving assistance or encouragement is via Serious Crime Act 2007 offences, not “attempt to aid/abet”.

Charging practice and venue are determined by the classification of the principal offence. Attempted murder is indictable-only; attempted theft is either-way and subject to plea before venue/allocation in the magistrates’ court.

The Actus Reus: More than Merely Preparatory

The principal test in attempt is whether the defendant’s conduct goes beyond mere preparation and does an act that is more than "merely preparatory" towards the commission of the offence.

Key Term: actus reus
The conduct element of an offence—here, doing an act which is more than merely preparatory.

There is no precise statutory definition—the phrase is afforded its ordinary meaning and developed in case law. The question is typically approached in two stages:

• As a matter of law, the judge decides if there is evidence on which a jury could find the acts are more than merely preparatory.
• As a matter of fact, the jury decides whether what the defendant did on the evidence amounts to an attempt.

What Counts as "More Than Merely Preparatory"?

Ask whether the defendant has “begun the crime proper”. The law does not require the defendant to have reached a “point of no return”. Important indicators include:

• How much of the planned sequence has been done and what remains to be done to complete the offence.
• Whether the defendant has moved from preparation (equipping themselves, travelling, reconnaissance) into execution (engaging with the victim, target property, or location in a way central to the offence).

Examples

• Buying a weapon, writing a plan, or travelling to the scene are generally preparatory acts.
• Inspecting a lock at the target premises with burglary tools on hand is typically more than merely preparatory—an overt move to commit burglary.
• Getting into the victim’s car and pointing a loaded gun at the victim is beyond preparation and can be attempted murder.
• Standing near the target premises with a disguise and a note but never entering is usually merely preparatory.
• Lurking in a schoolboy’s toilet with restraints without encountering any pupil is commonly preparatory; there is no engagement with the intended victim to attempt kidnap.

Courts frequently use the “begun the crime proper” language to draw the line between preparation and attempt.

Worked Example 1.1

Scenario:
Salma decides to rob a bank. She writes out demand notes, buys a mask, and waits outside the bank. Before entering, she is arrested in the car park. Is Salma’s conduct an attempt?

Answer:
Salma’s conduct up to waiting outside the bank is likely still preparatory. Unless she enters or makes moves into the actual commission of the robbery (such as pulling out a weapon inside), she has not done an act more than merely preparatory. Her acts remain preparation.

Worked Example 1.2

Scenario:
Ronald pulls out a knife and demands money from a cashier, but the till is empty. Has he committed attempted robbery?

Answer:
Yes. Ronald has done an act (threatening the cashier at knifepoint) that is more than merely preparatory—he has begun the commission of the crime proper. Even though the till was empty, this is an attempt.

Worked Example 1.3

Scenario:
Sophie parks down the street, retrieves a crowbar from her boot, walks to the target shop door and begins inspecting the lock when a passer-by intervenes. Does this cross the line into attempted burglary?

Answer:
Yes. Moving from possession of tools to engaging with the lock at the target premises is an overt step towards entry. Inspecting the lock in readiness to force entry is more than merely preparatory and can be attempted burglary.

Worked Example 1.4

Scenario:
Leo wears a helmet, carries an imitation firearm and a threatening note, and loiters near a post office for half an hour but never goes inside. Is this an attempt?

Answer:
No. On these facts Leo has not gone beyond preparation. Without entering or confronting staff or customers, the crime proper has not begun. His conduct remains merely preparatory.

The Mens Rea: Intention

For an attempt, the defendant must intend to commit the full (substantive) offence. This is stricter than for many completed crimes.

Key Term: intent (in attempts)
The prosecution must show that the defendant intended to bring about the elements of the substantive offence—nothing less will normally suffice.

The requirement is applied element-by-element:

• For result crimes, the defendant must intend the prohibited result. Attempted murder requires intent to kill (intent to cause grievous bodily harm is insufficient for attempted murder even though it suffices for murder).
• For conduct crimes, intention to perform the prohibited conduct is required (e.g., intending to enter as a trespasser for attempted burglary under s 9(1)(a)).
• For offences with circumstance elements (e.g., consent in rape, belonging to another in theft), the approach is more specific:
  • Where the completed offence requires recklessness as to a circumstance, the same may suffice for attempt as to that circumstance. A classic example is attempted rape: intent to penetrate, coupled with intention or recklessness as to lack of consent, can be sufficient.
  • Where the completed offence requires knowledge or belief as to a circumstance (e.g., property belonging to another), the attempt requires that same mental state as to that circumstance.

Key Term: conditional intent
Intending to commit the offence only if certain conditions are met (e.g., intending to steal if valuable items are present). Conditional intent can satisfy the intent requirement for attempt provided the condition relates to a circumstance of the offence and the conduct shows more than preparation.

• Conditional intent is often seen in burglary and theft scenarios (e.g., intending to steal if a till is open). It does not prevent attempt liability if the defendant has begun the crime proper.

Exam Warning

The level of intent required for attempt is strict. For murder, intent to kill is needed for attempted murder (not merely intent to cause grievous bodily harm). For attempted criminal damage, intention to destroy or damage is needed. Where the full offence allows recklessness as to a circumstance (e.g., consent in rape), recklessness as to that circumstance can be sufficient for the attempt, but the core conduct/result element must still be intended.

Worked Example 1.5

Scenario:
Amir intends to steal if the cabinet he is about to open contains high-value goods. He forces the lock and starts rummaging when police intervene. He says he only meant to steal if suitable items were present.

Answer:
Conditional intent does not preclude attempt liability. By forcing entry and beginning to rummage with the intention to steal if valuables are present, Amir has begun the crime proper. Attempted theft (or attempted burglary depending on the charge) can be made out.

Worked Example 1.6

Scenario:
Maya, intending to commit rape, attempts penetration. She says she was reckless as to whether the complainant consented. Is recklessness enough?

Answer:
For attempted rape, the prosecution must prove intent to penetrate. As to the circumstance of lack of consent, recklessness can suffice because the completed offence requires knowledge or recklessness as to consent. The strict intent requirement applies to the conduct element; recklessness can be sufficient as to the circumstance where the full offence allows it.

Attempt and omissive conduct

Section 1(1) requires that the defendant “does an act”. Attempts generally cannot be committed by omission. Even where a substantive offence can be committed by omission (for example, murder), liability for attempt still requires an act that is more than merely preparatory towards the conduct of the offence. A continuing act may sometimes bridge the gap where the defendant’s physical conduct is ongoing, but a mere failure to act will not ordinarily satisfy the “does an act” requirement for attempts.

Impossibility: Fact and Law

Under s 1(2) Criminal Attempts Act 1981, a person may be guilty of attempting to commit an offence even though the facts are such that commission of the offence is impossible.

Types of Impossibility

• Factual Impossibility: Defendant intends to commit an offence, but unknown to them, the crime cannot be committed on the facts (e.g., the property doesn’t exist, the pocket is empty, the victim is already dead). The law still treats this as an attempt. This includes impossibility due to inadequate means (e.g., using a harmless substance in an attempted poisoning).
• Legal Impossibility: What is intended is not a crime at all (e.g., D believes that carrying cheese is a criminal offence, but it is not). In this case, there is no attempt.

Key Term: factual impossibility
Commission of the full offence is prevented by unknown facts—still sufficient for attempt if intent is present.

Key Term: legal impossibility
What is intended is not a crime—no attempt liability arises.

Worked Example 1.7

Scenario:
Lina attempts to steal from a safe, but it is empty. She believes it contains money and tries to open it. Is she guilty of attempted theft?

Answer:
Yes. Lina’s belief that there is money in the safe and her act of trying to steal it show intent. This is a factually impossible attempt—she can be convicted under s 1(2).

Worked Example 1.8

Scenario:
Daniel tries to steal a lawnmower he sees in his neighbour’s garage. Unknown to him, the lawnmower is his own and had been lent to the neighbour. Is Daniel liable?

Answer:
Yes. Although theft of one’s own property is legally impossible on those facts, Daniel believed the lawnmower belonged to another and acted with intent to steal. This is treated as a factually impossible attempt given his belief as to the circumstances.

Worked Example 1.9

Scenario:
Jason imports a substance he mistakenly thinks is controlled. The substance is not proscribed. Is there attempt liability?

Answer:
No. If the act intended is not an offence under the law of England and Wales, this is legal impossibility. Attempt liability does not arise.

Withdrawal

Withdrawal is not a defence to attempt if the defendant has already done an act more than merely preparatory. Once the actus reus of attempt is complete, later desistance does not undo liability. Voluntary abandonment before crossing the “more than merely preparatory” threshold will prevent attempt liability, but once the threshold is crossed, stopping may be relevant only to sentencing.

Attempt and Complete Offence

• If the full offence is completed, the proper charge is the completed crime. Where the facts are equivocal as to completion, the prosecution may charge attempt as an alternative.
• A defendant cannot be convicted of both the completed offence and an attempt to commit the same offence in respect of the same act.
• There is no attempt to attempt or attempt to be an accessory (s 1(4)). Where assistance or encouragement is at issue, the appropriate inchoate offences are under the Serious Crime Act 2007, not the Criminal Attempts Act 1981.
• Penalties: attempts are generally punishable to the same maximum as the completed offence, although sentences often reflect the fact that the harm was not completed.

Worked Example 1.10

Scenario:
Oliver, intending to damage property, throws a brick at a window but misses completely. He is charged with attempted criminal damage. He claims he only meant to scare the owner, not to cause actual damage.

Answer:
If Oliver lacked intention to actually cause damage (even though he was reckless as to whether damage would occur), he cannot be liable for attempted criminal damage. The prosecution must show he intended the result. Recklessness does not suffice for the conduct/result element of attempt.

Practical Application Tips

• Identify the elements of the full offence and map them to attempt:
  • Conduct or result elements must be intended.
  • Circumstance elements may be satisfied by the mental state the full offence requires (e.g., recklessness as to consent for attempted rape).
• Apply the “begun the crime proper” test. Consider:
  • Did the defendant interact with the victim/target/property in a way central to the offence?
  • What remains to be done to complete the offence?
• Consider impossibility carefully. A mistaken belief that the facts are such that the offence can be committed will not save the defendant; legal impossibility will.
• Remember the statutory exclusions (no attempt to attempt; no attempt to aid/abet).

Worked Example 1.11

Scenario:
Kara intends to commit aggravated arson. She walks to her former partner’s house with petrol and a lighter, pours petrol on the doorstep, and is arrested before lighting it. She believed the house was empty, but later admits she accepted there was a risk people might be in. Is attempted aggravated arson made out?

Answer:
Attempted arson is made out: intent to cause damage by fire coupled with acts beyond mere preparation (pouring petrol at the property). For the aggravated form, the “endangering life” element of the full offence can be satisfied by intent or recklessness. Kara’s acceptance of risk that occupants might be present can satisfy recklessness as to endangering life, so attempted aggravated arson may be made out.

Summary

• Attempt covers acts which go beyond mere preparation towards a substantive offence.
• The threshold is “more than merely preparatory”: acts must move from planning to actually trying to commit the crime. The question of law/fact division is important—judges screen cases; juries decide whether acts amount to attempts.
• The required mental element is intent to commit the full offence—strictly applied to conduct/result elements. As to circumstances, mirror the mental state required for the full offence (e.g., recklessness may suffice as to consent).
• Factual impossibility is not a defence; legal impossibility is.
• There is no attempt to attempt, nor attempt to aid/abet. Withdrawal after crossing the threshold is no defence, though it can be relevant to sentence.

Key Point Checklist

This article has covered the following key knowledge points:

• Attempts criminalise conduct that has moved beyond planning into execution, even if the full offence is not completed.
• “More than merely preparatory” is the actus reus. Indicators include engaging with the target premises, property, or person central to the offence.
• Intention is required as to the conduct/result elements of the full offence. For circumstance elements, adopt the mental state the full offence demands (e.g., recklessness as to consent can suffice for attempted rape).
• Conditional intent can satisfy the intent requirement where the defendant has begun the crime proper.
• Factual impossibility is not a defence to attempt under s 1(2) CAA 1981; legal impossibility is.
• Attempt cannot be charged for summary-only offences unless a statute provides; low-value shop theft remains theft, so attempts can arise.
• There is no attempt to attempt, and no attempt to aid/abet (s 1(4) CAA 1981).
• Withdrawal is not a defence once the attempt actus reus is complete; it may only mitigate sentence.

Key Terms and Concepts

• inchoate offence
• attempt
• more than merely preparatory
• impossibility
• substantive offence
• actus reus
• intent (in attempts)
• factual impossibility
• legal impossibility
• conditional intent