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What is an attempt?
- Someone tried to commit a crime but fails
- White 1910 - intended to kill his mother, put cyanide in her drink before she had drank it she had a heart attack. D was not guilty of murder as he had not killed her but guilt of attempted murder.
Why is there a law on attempt?
- If the could not act until the victim was injured or killed this would be unjust
- It helps society feel safe
- It helps the police do their job
The old law on attempt
- Last act
- Rubicon test
- series of acts test
- defendant liable if he has done the last act before the crime proper
- Liability very late, creating dangerous situations
- Difficult to judge when the last act is.
- Robinson 1915 - jeweller insured stock and then made it look as if his shop had been burgled. His conviction for attempting to obtain money by false pretences was quashed as he had not got an insurance claim form, filled it in or sent it off.
- D crossed the line into criminality and passed the point of no return with no chance of going back
- Difficult to prove and could be very late in a set of events
- Stonehouse 1978 - D took out life insurance policies and faked his own death hoping his wife would claim on them. He was convicted of attempting to obtain insurance money by false pretences even though his wife had made no claim
Series of Acts
- D did several things which together created liability
- Difficult to decide what and how many act are enough for liability.
Current law on attempts
- To clarify the situation Parliament passed the Criminal Act 1981:
- s1(1) - if with an 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.
- An act which is more the merely preparatory to the commission of the full offence
- A positive act
Key cases in which the act is merely preparatory
- If D hasn't embarked on crime proper - Gullefer 1987 - D placed a bet on at the dog races then tried to stop the race to get money back when clear dog would lose - offence being attempted Theft
- If D is still preparing - Campbell 1990 - D seen loitering outside post office. When stopped by police D had sunglasses, imitation gun and threatening note. Attempted crime - Robbery.
- If D had not actually tried to commit the offence - Geddes 1996 - D found hiding in the school toilets with a bad containing knife, rope and tape. Attempted crime - false imprisonment
Key cases in which the act is more than merely preparatory
- If D has carried out sufficient series of acts to be an attempt - Boyle and Boyle 1987 - D's found standing by door with broken lock and hinge - Attempted crime - Burglary
- If D had not performed the last act but had done enough - AG's Reference (No 1 of 1992) - man dragged girl into shed and attempted rape but could not get erection.
- In Jones 1990 it was seen that getting into car and pointing gun was enough for attempt.
Mens rea of attempt
- Normally intention is the key level of mens rea in an attempt
- Recklessness is generally insufficient - but there is an exception.
Key cases on mens rea of attempt
- D must have the intention to kill for attempted murder - Whybrow 1951 - D wired up soap dish in bath intending to electrocute wife - Attempted crime - Murder.
- D must is not guilty if no intention to steal particular items - Easom 1971 - D picked up, looked in and replaced handbad in cinema without taking anything Attempted crime Theft.
- No conviction is D is only reckless - Millard and Vernon 1987 - D's kept pushing at fence in football stand - Attempted crime criminal damage.
- For recklessness to be sufficient the D must have intention for part of the offence - AG Ref (No 3 of 1992) - Man threw petrol bomb at car containing four men but missed. Attempted crime - Committing arson with intent to endanger life.
Attempts and Impossibility
- Before the Criminal Attempts Act 1981 - if the crime was physically or legally impossible to commit then there was no offence.
- After the Criminal Attempt Act 1981 - Factual impossibility s1(2) - 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
- Legal impossibility: s1(3) - where D set out/intends to commit what they think is a criminal activity but what they were doing was not in fact a crime/illegal
Key case on Impossibility
- Anderton V Ryan 1985 - D brought video recorder thinking it was stolen but it was not - Courts said that because it was not stolen D's acts were 'innocent'
- Impossibility is no barrier to conviction - Shivpuri 1986 - First use of the practice statement to overrule Anderton v Ryan. D intended to recieve a suitcase which was believe to contain drugs but actually contained harmless vegetable matter
AO2 Evaluation points
- Clarity since the CAA - Now only one test BUT juries can still be unsure, leading to inconsistency.
- Justification based on high level of MR - gives credibility to law BUT harsh sentencing when harm was not occurred.
- Tough sentencing - encourages public confidence BUT arguably harsh for minimal action
- Effective deterrent - severity of crime make a potential offender think twice BUT little evidence that offenders consider the consequences
- Attempted murder - those who fail to kill still receive most serious sentence BUT harder to convict for attempted murder than for the full offence
- Level of MR can be higher than for the full offence - gives justification for punishment BUT can be harder to convict and appears illogical
- Use US test 'alternative steps.. strongly corroborative of actor's purpose' BUT this is possibly changing one set of problem for another.
- 2007 Law commission Consultation Paper - create new offences of reaching last act needed to commit offence and criminal preparation; same maximum penalty as full offence, could be committed by omission and need intent/condition intent
- 2009 Law commission report drops new offences but say amendment to existing law worth pursing.
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