The Criminal Attempts Act 1981 aimed to improve the law on attempts but its success is debated. The Act defines attempt as having an actus reus of conduct beyond preparation and a mens rea of intent to commit the full offense. However, subsequent cases have struggled to consistently apply tests to determine what is merely preparatory. The Law Commission now recommends amending the Act to avoid cases where dangerous individuals escape liability and to better protect the public.

1. 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]<br />The Criminal Attempts Act 1981 governs the law on attempts. The actus reus for attempt is an act which is more than merely preparatory to the commission of an offence. The mens rea is ‘With intent to commit an offence’ which means that it requires proof that the defendant intended to bring about any result specified in the full offence e.g. intended to kill or cause GBH which is the result required for the offence of murder. The case of White illustrates this where D wanted to kill his mother and so put cyanide in her drink. She died of natural caused before the cyanide could take effect, however, he still had the intent to kill and his actions were more than mere preparation to the commission of the offence and so he was liable for attempted murder. <br />The common law developed several tests to decide if D is liable for an attempt or not. First is the proximity test, this test established in R v Eagleton 1855. Holds that 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. This test was vague because there was no clear direction as to when an act was no longer remote and became an intention to commit an offence. As a result the Law Commission proposed a test that looked forward to see if the accused had gone beyond the preparatory stage whereas the proximity test had looked backwards from the commission of a full offence to see how near the acts were to that act being committed. <br />In DPP v Stonehouse (1978) the Rubicon test was developed. In this case Lord Diplock stated that: “The defendant must have crossed the Rubicon and burnt his boats.” Consequently the defendant must have reached a point of no return and could no longer withdraw from the offence! The Court of Appeal applied this principle in R v Widdowson (1986) after the Criminal Attempts Act was passed as an acceptance of this test as appropriate to determine what is more than merely preparatory. This test is also referred to as the ‘last act test’. <br />In R v Boyle and Boyle (1987) The Court of Appeal referred to the ‘series of acts’ test devised by Stephen (Digest of Criminal Law) which was as follows: <br />“an attempt to commit a crime is an act done with intent to commit that crime and forming part of a series of acts which would constitute its actual commission if it were not interrupted.”<br />The appellants were convicted of attempted burglary, having been found standing by a door that had a broken lock and hinge by a policeman.<br />The variety of tests developed by the criminal law has caused problems in terms of consistency. In the absence of clear, consistent guidelines the ‘more than merely preparatory’ test of proximity has proved to be too vague and uncertain a basis for a court to determine whether an attempt has been committed. <br />In 1990 a new ‘crime proper’ test was developed in the case of R v Gullefer (1990). The defendant, seeing that the dog he had backed in a greyhound race was losing, jumped onto the track and attempted to distract the dogs by waving his arms. He hoped that the stewards would declare quot;
no racequot;
and he would recover his £18 stake. The defendant was unsuccessful in this endeavour but was convicted of attempted theft. The COA quashed his conviction as the defendant’s act was merely preparatory. Lord Lane CJ tried to devise a new test that incorporated elements of the proximity, Rubicon, and series of acts tests. According to this test the defendant has committed an attempt when he has ‘embarked on the crime proper.’ (In order to have embarked on the crime proper, the court thought that the defendant would have to go to the bookmakers and demand his money back.) It is however important for the police to be able to stop criminals before the offence is committed, this is one of the policy factors that makes the law of attempts necessary along with the protection of the public. Therefore, this restrictive test (embarking on the crime proper) means that this may not always be the case. <br />In R v Jones (1990) it was stressed that the correct approach was not to try and fit in previous tests to the words of the Criminal Attempts Act 198 but to look at the natural meaning of the words in the act. In this case the defendant bought a shotgun, shortened the barrel, put on a disguise and had gone to the place where his intended victim dropped his daughter off for school. As the girl left the car, the defendant jumped in and asked the victim to drive. The defendant took the loaded sawn-off shotgun from a bag, pointed it at the victim and said: quot;
You’re not going to like this.quot;
The victim then grabbed the gun and managed to throw it out of the window and escaped. The defendant was convicted of attempted murder and appealed. The COA dismissed the appeal. Taylor LJ felt that there was evidence from which a jury could conclude that the defendant had done acts which were more than merely preparatory. The defendant’s actions in dealing with the gun; in putting on his disguise and going to the school could only be regarded as preparatory acts. But once he had got into the car, taken out the loaded gun and pointed it at the victim with the intention of killing him, there was sufficient evidence for the consideration of the jury on the charge of attempted murder.<br />Another example of where the public may not be protected and the police are not able to intervene before the crime is committed is R v Cambell. The defendant, who admitted intending to rob a post office, was arrested a yard away from the door. He had been observed earlier ‘lurking around’ in motor cycle gear and wearing sunglasses as a disguise. He had in his possession a threatening note and an imitation firearm. He was convicted of attempted robbery and appealed.The COA quashed the defendant’s conviction. Watkins LJ held that the defendant's acts were merely preparatory. Too many acts remained undone. The police would have had to wait until he had gained access to the place where he could carry out the offence, but surely this is endangering the public. However, on the other hand it is important not to punish a defendant for mere contemplation. <br />The problems with such as restrictive test are apparent in the case of Geddes, more so than any other. The defendant was discovered in the boys’ toilet of a school. He had a rucksack with string, sealing tape and a knife. He was convicted of attempted false imprisonment of a person unknown. On appeal his conviction quashed. There was no doubt as to the defendant’s intent but serious doubt that he had gone beyond the mere preparatory stage.Lord Bingham CJ – stated that the question is whether ‘the defendant has done an act which shows that he has actually tried to commit the offence, or whether he has only got himself in a position or equipped himself to do so.’ The question to ask is whether this provides this defendant and others like him with a suitable deterrent not to act in such a way in the future. Surely if not found, he would have gone on to complete the offence. <br />The case of R v Tosti and White (1997) is illustrative that the law is in some ways more effective at protective property rather than the public. The defendant and another provided themselves with oxygen cutting equipment, drove to a barn which they planned to burgle concealing the equipment in a hedge. They approached the door and examined the padlock with a light. They became aware that they were being watched and ran off. The COA upheld their convictions for attempted burglary, applying Geddes. There was evidence that they were trying to commit the full offence.<br />Turning the focus to mens rea, it is clear that the essence of the mens rea in attempt is the defendant’s intention. In Mohan (1975) intent was defined as the decision to being about the commission of an offence no matter whether D desired the consequence of his act or not. R v Walker and Hayles (1990) confirmed that the Nedrick (1986) direction (as amended by Woollin 1998) on when the jury may find that the defendant intended a result based on the defendant’s foresight of virtually certain consequences, applies to attempts. <br /> In Whybrow (1951) the CA held that although on a charge of murder, an intention to cause GBH would be enough, where attempted murder was alleged, nothing less than an intent to kill would do. Intent becomes the principle ingredient of the crime because actus reus has failed. This shows that the law is more favourable towards a defendant who attempts a crime because it is harder to prove an intent to kill than it is an intent to cause GBH. It is therefore easier to convict someone of the full offence of murder than it is to convict for attempting that offence. <br />Usually recklessness is not enough to establish mens rea for an attempt, however, in some cases it may be possible to obtain a conviction even though the defendant was reckless as to some of the elements of the Actus Reus. In R v Khan and Others (1990)Four men had been convicted of the attempted rape of a 16yr old girl. All four had tried to have sex with her, unsuccessfully. The defendant’s were convicted on the direction that recklessness as to lack of consent was sufficient mens rea. They appealed on the basis that attempt required proof of intent. Their appeal however was dismissed. Since recklessness as to lack of consent is sufficient for the full offence, the same is true for attempting the offence. So, where the full offence is satisfied by recklessness in respect of elements (other than any specified result) recklessness in respect of those elements is also sufficient for attempting the offence. Also in AGs Ref (No 3 of 1992) (1994)the defendant’s threw a petrol bomb narrowly missing four men sat in their car and two other men standing nearby, and smashing into a wall. The defendant’s were charged with attempted arson, being reckless whether life would be endangered. The judge ruled that, on a charge of attempt it had to be shown that the defendant both intended to damage property AND endanger life. (Intent to endanger life was required; recklessness was not sufficient.) The COA held this was wrong. It was enough that the defendant intended damage to property, being reckless as to whether life would be endangered. <br />Prior to 1979 an opportunist thief could not be charged with intent if they merely rummaged through a bag and only stole if there was something worth stealing (Easom 1971). This was solved in AGs Ref (Nos 1 & 2 of 1979) (1979) where the COA provided that in such cases the defendant should be charged with an attempt to steal ‘some or all of the contents of the handbag.’ This means that conditional intent is enough. <br />If a crime is impossible, no one can be convicted of actually committing it; but it does not follow that no one can be convicted of attempting to commit it. The crime may be physically impossible for example where the defendant attempts to pick the victim’s pocket but the pocket is empty or attempts to murder the victim by stabbing him but the victim had already died of natural causes. It may also be legally impossible for example the defendant believes he is handling stolen goods, when they are not in fact stolen. The CAA 1981, state is s. 1(2) 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.’ Despite this however, in Anderton v Ryan (1985) The court was reluctant to impose liability solely on the basis of what the defendant thought she was doing, as opposed to what she was actually doing. The defendant bought a video recorder, believing it to be stolen. She was charged with attempting to handle stolen goods, but it could not be proven that it had in fact been stolen. The HOL quashed the defendant's conviction as she could not be guilty of attempting to handle stolen goods unless such property was shown to have existed. <br />The intention of the CAA was however restored in R v Shivpuri (1986). The defendant was paid to act as a drugs courier. On collecting the package, the defendant was arrested by the police. The defendant confessed that he believed its contents to be either heroin or cannabis. An analysis revealed the contents of the package not to be drugs, but a harmless vegetable substance. The defendant was convicted for attempting to be knowingly concerned in dealing with and harbouring a controlled drug, namely heroin. The HOL dismissed the appeal as, since the defendant had the mens rea and had committed the actus reus of the attempt, he was guilty because CAA 1981 s.1(2) provides that impossibility is no defence. <br />There is therefore a fine line between a thought crime and an attempt and the CAA can be criticised for criminalising people’s thoughts. However, the law of attempt does not punish the defendant for his thoughts alone; there must always be the ‘more than preparatory act.’ The defendant’s like those in Shivpuri clearly intended to deal in prohibited drugs and are therefore just as dangerous as those who commit the substantive crime. The defendant’s prosecution and conviction can be seen to be in the public interest. The ‘objectively innocent’ nature of the acts means that many attempts will not come to light. But in those where it does, the defendant should not escape punishment.<br />Despite the CAA 1981 being an improvement on the various common law tests that preceding it, there have still been some cases with inconsistent and perhaps unfair outcomes, such as Geddes. In such cases, the reasons for having a law of attempts, i.e. protection of the public and the need for effective intervention by the police, have been undermined. <br />The Law Commission Recommends that s1(1) of the 1981 Act should be amended. The rationale behind these changes would be to avoid defendants like those in Geddes from escaping criminal liability where it is obvious that their intention was to commit the full offence. <br />It is the Law Commissions proposals that there should be an offence of criminal attempt wherein the conduct element of the offence is limited to the last acts that the defendant has to do to secure completion of the offence.<br />Secondly, there should be an offence of ‘criminal preparation’. This offence (which will require the same fault element as criminal attempt) can be committed when someone has engaged in conduct preparatory to the commission of an offence. Nonetheless, to amount to criminal preparation, the conduct must go sufficiently far beyond merely preparatory conduct so as to amount to part of the execution of the intention to commit the intended offence itself. This offence will have the same maximum penalty as the completed offence.<br />Case law development over many years, and previous reform proposals, have been aimed at covering through one offence of ‘attempt’ some or all of the conduct at issue in both of the proposed offences just outlined, to make this statutory could only constitute an improvement in terms of consistency and fairness and would be more likely to provide an effective deterrent. <br /> <br />