Criminal Attempts PDF

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Criminal AttemptsThe difference between the person who tries to commit a crime and fails and their counterpart who is successful, may be nothing more than a gun which misfires, poor aim or a victim who ducks. From a penological perspective, both offenders may be equally dangerous and equally in need...

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Criminal At Attempts tempts The difference between the person who tries to commit a crime and fails and their counterpart who is successful, may be nothing more than a gun which misfires, poor aim or a victim who ducks. From a penological perspective, both offenders may be equally dangerous and equally in need of rehabilitation and restraint. Therein lies one rationale for the law of criminal attempts. However, there is a problem with this rationale in that criminal law generally is premised on the defendant having done something manifestly wrong which demands retributive punishment. If the rationale behind the law of criminal attempts is to prevent people who intend to commit an offence from committing it, then it may justify a law of criminal attempts which allows the intervention of law enforcement agencies well before the defendant has done anything manifestly wrong. This confusion at the heart of criminal attempts has created some destabilising doctrine. Consider, for example, the case of Geddes (1996) 160 JP 697. D was found in a boy’s lavatory in a school, armed with knife, rope and masking tape. He did this in furtherance of an intention to falsely imprison a boy with a view to committing a sexual assault. The question was whether this could amount to an attempt to falsely imprison the boy. The judge ruled that it could and it was for the jury to decide whether it did. The jury was in no doubt – D was convicted. The Court of Appeal, however, quashed the conviction. To count as an attempt at false imprisonment, D had to do more than prepare for it. He had to have done things which formed part of the execution of the offence. Prior to the Criminal Attempts Act 1861, the law was that there should be proximity between the offence intended and the acts done by the accused in furtherance of the commission of that offence. The need for proximity was first advanced in the case of Eagleton (1855) 169 ER 826, in which the defendant was given the job of delivering bread to the poor for which he was paid by the guardians of a parish. D claimed the money but delivered loaves which were underweight and was charged with attempting to obtain money by false pretences. Parke B gave the following statement of principle which became the standard test for attempts.

‘’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... ‘’ Since the defendant in Eagleton had committed the last act needed on his part to commit the offence, his act was clearly proximate (immediately connected) to it and so he was guilty. Unfortunately, this led on occasions to judges insisting that an attempt always required defendants to have performed the last act needed on their part for the crime to be committed; in other words, for them to have completed their attempt. Generally, however, the courts did not require defendants to have performed the last act necessary on their part to complete the attempt. So in White [1910] it was said that a defendant could be guilty of attempting to kill his mother by poison although the modus operandi was to poison by cumulative effect and the defendant had administered only small amounts at the time he was convicted. A number of different tests were essayed: for example, in Stonehouse [1978] AC 55 Lord Diplock referred to the fact that the defendant had ‘crossed

the Rubicon’; that is, he had gone so far towards achieving his criminal objective that there was no turning back, although there were still acts needed to be done. Attempting to commit a crime was made a statutory offence by the Criminal Attempts Act 1981. A major objective of the Act was to pinpoint with greater precision than hitherto the quality of conduct which amounts to an attempt. The basic definition is contained in s.1:(1) ‘’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.’’ Actus reus In England and Wales, the Criminal Attempts Act 1981 is representative of the general common law approach, which is to seek a midway point between acts of preparation and acts of perpetration to constitute the attempt. Proximity to the completed offence is still required but, in order to ensure a practical marriage of prevention and retribution, the test for proximity is couched in terms which avoid specifying the degree of proximity required. This is done by requiring an act which is ‘more than merely preparatory to the commission of the offence’. Ireland, Canada, Victoria, Singapore and Australian Capital Territory all use a similar formula. The emphasis in each case is upon what remains to be done. Is the person in the process of executing the offence or simply preparing for it? When is an act ‘more than merely preparatory’? The ‘more than merely preparatory’ test is still a proximity based test. The judge decides whether the defendant’s acts are capable of being more than preparatory. If they are so capable the jury, then decides whether they are in fact. Judges have been instructed to ignore pre-Criminal Attempts Act 1981 tests – such as the Rubicon test – in favour of a test which distinguishes between when the defendant is ‘on the job’, that is in the process of executing the offence, and when they are merely preparing for this. In Gullefer [1990] 1 WLR 1063, D, in the course of a greyhound race, realised the dog that he had put money on was not going to win, so he climbed on to the track in an attempt to stop the race, hoping that this would enable him to recover his stake. The stewards decided not to stop the race. It was held that D’s acts were too remote from the offence he was charged with attempting (theft of the stake money). The Court of Appeal held that at the time D was arrested he could not be in the process of committing theft as the race had not been called off, so there would be no evidence of him doing acts of execution fit to put to the jury. Lord Lane CJ said that the actus reus of attempt is satisfied:

‘’when the merely preparatory acts come to an end and the defendant embarks upon the crime proper. When that is will depend of course upon the facts in any particular case. ‘’ It would have been different if the race had been called off, since then D was in a position to execute the offence.

This test was also adopted in Campbell (1991) 93 Cr App R 350, where D was charged with attempted robbery of a Post Office. He had analyzed the place, bought a disguise and imitation firearm and had armed himself with a threatening note he was intending to give to a cashier. D was arrested before he entered the Post Office. The Court of Appeal, quashing his conviction, held that these were acts of preparation. He had not embarked upon the crime proper. R V JONES A case falling on the other side of the line is Jones (1990) 91 Cr App R 351. In this case, D, who was jealous of V, got into V’s car while it was stationary and handed over a letter. While V read it, D took a loaded sawn-off shotgun from his bag, pointed it at V at a range of some 10 to 12 inches and said, ‘You are not going to like this’ or similar words. V grabbed the end of the gun and pushed it sideways and upwards. There was a struggle, during which V managed to throw the gun out of the window. D’s conviction for attempted murder was upheld. The Court of Appeal rejected the contention that he had not performed the last act necessary to commit the offence – he still had to take off the safety catch, aim the gun and pull the trigger – and so had not gone beyond the preparatory stage. In the Court’s view:

‘’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 a charge of attempted murder.’’ Mens rea Section 1 of the Criminal Attempts Act 1981 specifies that attempt is a crime of specific intent. A must intend to commit the substantive criminal offence. This means that the mens rea of attempted murder is not the intention to kill or cause grievous bodily harm but the intention (specifically) to kill. This was made clear in Whybrow (1951) 35 Cr App R 141, in which D built an electric device to give an electric shock to his wife when she took a bath. Parker J directed the jury that if it was satisfied that in doing so D intended to kill his wife or do her grievous bodily harm, then he would be guilty of attempted murder. The Court of Appeal ruled that this was a misdirection but upheld the conviction as there had been no miscarriage of justice....