Download Understanding Criminal Attempts: Actus Reus, Mens Rea, and Key Cases and more Study notes Criminal Law in PDF only on Docsity!
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By the end of this topic you will be able to (AO1):
Explain what is meant by an ‘attempt’ and the reasons why we criminalise this behaviour. Understand the problems surrounding the actus reus of attempts Explain the mens rea of attempts Explain whether it is possible to be liable for ‘attempting to do the impossible’.
You will also be able to evaluate (AO2):
The current law of attempts and how it relates to the substantive crimes. Proposals for the future of attempts. The principles behind the criminalisation of attempts How we judge whether acts are “more than merely preparatory”
Homework
During this unit, you will be set the following. In completing homework, you will be expected to do your own research and supplement your own notes. This is essential to show understanding, progress and prepare for January’s synoptic paper.
- Complete a set of case cards on the key attempts cases, ensuring that you cover the relevant facts, ratio, issues and links to any other relevant cases
- Complete the essay detailed below, which will be planned in class time, remembering to refer to the information in the source you have been given in your response.
End of Unit Assessment
You will sit a DRAG test on attempts. Remember, you will have the choice to answer 10 out of thirty questions, reflecting your understanding and knowledge of the subject. This topic alone is worth 40% of your A grade.
You will also complete the following essay questions:
'The Criminal Attempts Act 1981 was intended to improve the law on attempts. The extent to which it has succeeded is open to doubt.' Critically evaluate the accuracy of this statement. [50]
WWhhaatt^ iiss^ aann^ ‘‘aatttteemmpptt’’?? It’s not as easy as it sounds!
Firstly... Can you think of two other words or phrases which you could use to explain what an attempt is:
Secondly... For each of the following crimes, without knowing anything more about them that what you do now, what would you have to do to be liable for the attempted version?
Murder
Kidnapping
Rape
Theft
Assault
Burglary
Thirdly... Look at the following statements. In each an action is being performed. Marked the ones which might constitute an attempt and explain why:
Trying the handle of a door
Knocking down a wall
Walking up behind someone and taking your hands out of your pockets Placing a ladder against a house
Taking out life insurance
Knocking on the door of someone’s house
Fourthly... Can you spot any issues with the offence so far?
Right. Enough about the theory... The Law on Attempts
Attempts, along with incitement and conspiracy, are known as the inchoate (or ) offences. They are all offences where D does not complete the final substantive offence. However, because of a combination of their actions and mens rea, they are liable for this ‘lesser’ offence.
Attempts is a statutory offence, and comes from the Criminal Attempts Act 1981, which was put into place following a need to clear up the confusion in the courts regarding quite how far you had to go to be liable for an attempt legally.
Remember : Although the liability for an attempt rests mainly on the mens rea, that alone is not enough. There have to be some physical steps as well. The problem for the courts is how close to carrying out the crime do you have to get?
Definition:
What does this mean? See if you can apply the law to the following case, which we have
already met this year. R v White 1910
Facts: Ratio:
Do you think that he had done enough to be liable for the 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, he is guilty of attempting to commit the offence
s.1(1) Criminal Attempts Act 1981
Mens Rea? Actus Reus?
Exclusions
Oh yes, as with everything in the criminal law, there are exceptions to the law on attempts. Some of these are more controversial than others!
Actus Reus
According to s.1(1) of the Criminal Attempts Act 1981, D must do an act or acts which are:
AO2: What’s the problem with this phrase?
This question is one of , and is left to the. [s.4(3)]
But: it is up to the judge to decide if there is evidence on which the jury could find that there has been acts which fit the test.
If there is no evidence of such acts, then the judge must direct them to acquit.
However, if the judge decides that the evidence is capable of meeting the threshold, then it is up to the jury to decide whether, on the facts they are liable.
AO2: Can you spot a potential problem here?
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“..done an act” s.1(1)
“This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence” s.1(4)
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Remember: prior to 1981, attempts were a common law offence, which means the definition was left up to the courts. This in turn led to a lot of confusion, as different judges took different approaches to when an attempt starts.
Why could the judges vary their opinion?
So, when the Act came in, and there was no guidance on what MTMP actually meant, a lot of judges and defendants looked to these tests to help them – defendants especially as a lot of these were stricter, at least in principle, than this new test.
Example: Remember Jones? He argued that he would have had to cock the gun, put his finger on the trigger and then pull it to be liable!
Test One: Proximity
It can be a narrow test, as it seems to look backwards from the full offence, to see if what D did was close to it. MTMP, on the other hand, looks forward from the preparatory acts, to the full offence.
Eagleton 1855 Facts: Ratio: ‘acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are” Parke B
This was confirmed in the following case:
Robinson 1915 Facts: Ratio: Followed and confirmed the ratio of Eagleton calling it a ‘safe guide’
Test Two: Burnt all your boats or ‘Rubicon’ test...
This is really a tighter version of the proximity test, and is sometimes known as the ‘last acts’ test.
In normal language this means:
Stonehouse 1978 HL
Facts: Ratio: Diplock said that it was only an attempt “if [D] crossed the Rubicon and burnt his boats”.
However, he also approved the ratio of Eagleton.
What issues are there with these tests so far?
Test Three: Series of Acts
This comes from a earlier statement from Sir James Stephen in the 19th^ Century. This is where D’s actions form part of the AR of the crime, which would be completed if not interrupted.
Davey v Lee 1968 Facts: Ratio DD were charged with attempting to steal metal from a site. A policeman had heard noise by the fence, and saw two men, one of which was a D. 20 minutes later a passerby saw a white van without lights ½ a mile away from the site. The van was stopped by police 14 miles away from the site, and DD were in it. The police searched it and found wire cutters. They then started to drive back to the police station, and saw DD throw something out of the van. Bolt cutters were found in the area, and there was a hole in the fence!
DD were convicted and appealed on the grounds that they were only preparatory acts
R v Boyle & Boyle 1986
Facts: Ratio: CA followed Sir Stephen’s test, and upheld the convictions.
AO2 Development: Is this case too narrow an interpretation? What problems might this approach
cause? What more might D have had to do?
How can you reconcile this decision and the decision in Boyle & Boyle?
The following case is the most controversial, and there are a lot of questions as to whether this was the right decision on the facts. The Law Commission hates it with a vengeance!
Geddes 1996
Facts: Ratio: CA quashed his conviction on appeal. They argued that D had yet to even approach a student. The two questions that need to be answered were:
- Had D moved from planning or preparation to execution or implementation?
- Had D done an act showing that he was actually trying to commit the full offence or had he got only as far as getting ready, or putting himself in that position or equipping himself to do so.?
In fact, as a result of the Geddes decision, Parliament had to create a new offence in s.63 of the Sexual Offences Act 2003 of trespass with intent to commit a sexual offence to plug the loophole!
Developing your AO
Geddes is one of the key cases for your synoptic, and it is worth looking at what exactly is so
controversial about the decision before we move on...
Restricts attempts to only the last acts
Addresses only one type of attempt
Ignores the intentions of Parliament in passing the Act
Fails to take account of why attempts are criminalised
Ignores the ‘plain ordinary meaning’ of the Act
Creates confusion and inconsistency in the interpretation of the section
So what happened next?
Interestingly, where you and I might argue with the CA’s decision in Geddes and |Campbell , and say that they are being very restrictive, the CA has been quite consistent in its application,
Case Facts Does it meet the Guellfer/Geddes test?
Tosti
Bowles & Bowles
Stretch and Challenge
Sex Offences: Are they consistent? Look at the following case from 2003.
Applying the Guellfer test:
- Would D be liable for attempted rape?
- Is the decision consistent with the CA approach in other attempts cases?
- What might its approach here reveal about the importance of public opinion in
V was at a bus stop where the D was already waiting. It became apparent to her that D wished to have sex with her and, indeed, he said expressly that he wanted to “fuck her”. She became frightened and moved away from the bus stop. She was followed by D, who ultimately grabbed her and forced her against a fence. She was screaming. She managed to get back to a bus stop in another road and was still screaming and being held by D at a point when she became convinced that she was to be raped and so indicated to D that he could do what he wanted as long as he didn’t hurt her.
Mens Rea
Ok, so you have done acts which are ‘more than merely preparatory’, but what makes your acts different from the innocent person who completes the same series of steps.... INTENTION.
Which type of intention?
According to the case of Pearson 1985, intention has the same meaning in s.1(1) as it does in the common law, which means it can be direct or oblique.
Walker & Hayes 1980 Facts: Ratio
Please note that although the decision has been disapproved of in Woollin , the principle seems to remain!
What does intent actually mean?
R v Mohan 1975
Facts: Ratio: “An intent means a desire to bring about, insofar as it lies within [D’s] power, the commission of the offence which it is alleged [D] attempted to commit, no matter whether [D] desired the consequence or not. “
What about an attempt to kill?
Whybrow 1951
Facts: Ratio:
A Problem: Conditional Intent
This (in posh words) is “a stipulation something upon the fufliment of which something else depends.”
Example : Miss Hart holds a gun to your head, intending to kill you only if you name the Daily Mail as Britain’s best paper.
If you name any other… the condition for the intent is not fulfilled, and so technically I have MR!
In the criminal law it is in the offences of theft and burglary where this becomes a problem. Essentially D is charged with attempting to steal the jewellery in a purse, or the bottles of wine lorry.
The problem is that D may not even have known the jewellery or bottles were there, and so technically has no mens rea, and so would not be liable, which seems unfair.
R v Husseyn 1977 Facts: Ratio: D and another had been loitering near the rear doors of a van. The police approached and they ran off. They were arrested and charged with attempting to steal the diving equipment which was in the back of the van.
Attorney General’s Reference No 1&2 of 1979 (1979) closed it... How?
What about those crimes with more than one MR element?
This is where it gets a bit tricky and the courts start really playing around with their tests!
The act only uses one word: , so surely that applies to all aspects of MR? Er... that’s far toooooo easy!
What was the decision: Essentially, D will still have to intend the central act of the offence, but for any circumstances in which that offence may take place, or consequences, he can just be subjectively reckless.
I bet that makes absolutely no sense right? Well, look at the crime on the next page...
At Attteemmppttiinngg ttoo ddoo tthhee iimmppoossssiibbllee!!
According to the Law Commission, this was the reason behind the Criminal Attempts Act 1981.
Would you really try to commit an offence you know is impossible? Well, no. So these are the really daft offenders! Normally it’s because they have made a mistake... how?
Ok... what happened before the Act?
Haughton v Smith 1975 HL Facts Ratio: Police intercepted a van of stolen meat and concealed officers inside and let the van continue.
D was charged with handling stolen goods, but appealed because he said that they were in lawful police custody and so couldn’t be stolen.
The Law Commission did not approve of this approach, and their suggestions eventually helped to create s.1(2) and s.1(3) of the Act:
(2) 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.
(3) In any case where - (a) apart from this subsection a person’s intention would not be regarded as having amounted to an intent to commit an offence; but
(b) if the facts of the case had been as he believed them to be, his intention would be so regarded,
then, for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence. Why do you think they wanted to criminalise attempting to the impossible?
There are two situations when you may be liable:
Case Why was it impossible?
Physical impossibility Crowley & Llewellyn 2005
Legal impossibility Anderton v Ryan 1985
Anderton v Ryan 1985 Facts: Ratio:
R v Shivpuri 1986
Facts: Ratio: HL use the to overrule their previous decision.
Bridge LJ “What turns what would otherwise ... be an innocent act into a crime is the intent of the actor to commit an offence.”
How could you distinguish between these two cases?
A more recent example:
Jones 2007 Facts Ratio
Final Tasks
- Read the facts below. They come from the case of Attorney-General’s Reference (No. 1
of 1992) 1993. Is D guilty of attempted rape?
D dragged a girl into a shed. He lowered his trousers and sexually assaulted her. However, he did not have an erection.
Reason your conclusion, using relevant case law & tests, below:
- Fred has just broken up with his girlfriend and wants to kill her. He believes in voodoo and makes a model of his girlfriend into which he sticks 10 pins. Nothing happens. Is he guilty of attempted murder? Reason using appropriate cases.
- The Law Commission says that most of the problems are because of the word attempts itself. Why do you think it causes so many problems?
Revision Questions:
Why should we have a law on attempts?
What is the definition of an attempts?
Who decides if an act is more than merely preparatory?
What are the facts of R v Tosti?
What is the mens rea for attempts?
Can you attempt to do the impossible?
What is the maximum that a convicted attempter can receive?
Is this fair?
Describe the test for deciding whether an attempt has taken place, using relevant cases.
What are the three tests which can be applied to different acts?
Outline R v Jones. At which point was it held to be an attempt?
