Attempts under the Criminal Attempts Act 1981
The matter in this essay is mainly concerned with the extent, if there is any, the Criminal Attempts Act 1981 has explain and simplify the range of activity-application and operation of the law of attempts in English criminal law. The purpose of the essay though, is to explain if the ‘1981 Act’ has cause more confusion or has make the law clear.
The issue of the application and operation of the law of attempts will be considered in three stages. The first stage will analyse the requirements for an attempt to be established under the common law. The second stage will analyse the introduction of the new legislation operating attempts under the current law, and finally the third stage will consider whether there are any problems in this area of the criminal law together with criticisms of the law and possible changes.
COMMON LAW
“Until 1981 the common law flirted with various issues. One of these was the ‘equivocality test’ under which a defendant had to take sufficient steps towards the crime for his actions clearly and unequivocally to indicate that his purpose was to commit the crime.”[1] This was clearly in accordance with the ‘second order harm’ view and the objectivism theory. “If the defendant’s acts showed beyond reasonable doubt the criminal end towards which they were directed then it could be said to be an attempt”.[2]
Rubicon test used in common law is the test, which “a person is not adjudged to be beginning his attempt until he has ‘burnt his boats’ such that he cannot turn back. Although this test is looser than the last act test, it nevertheless makes it difficult for the law enforcement agencies to intervene when the defendant is on the ‘job’ but is not yet in a position to execute his plan, for example, because the intended victim has not arrived at the time the arrest is made, or he has not entered the building where the offence is to take place”[3].
The test finally adopted by the common law established in Eagleton[4] was the proximity test. “The defendant’s actions had to be proximate to the completed offence in the sense of being ‘immediately and not merely remotely, connected’ with the completed offence”[5].
As Scanlan[6] suggests, one of the difficulties associated with the old law on criminal attempts was the question of how far the defendant would have to progress towards the commission of the completed crime to be said that he had committed the actus reus of attempt.
CRIMINAL ATTEMPTS ACT 1981
Today in England and Wales attempts are no longer governed by the common law but by the Criminal Attempts Act 1981 but, as at common law, the dividing line is to drawn between acts of preparation and acts of perpetration (being steps which are more than merely preparatory and therefore attempts which a person may be liable).
Initially the House of Lords were reluctant to interpret these acts of preparation and acts of perpetration in manner that would produce the result intended by Parliament. In Anderton v Ryan[7], “the defendant had bought a video recorder for £110, but later confessed to the police that she believed it to have been stolen property when she bought it. The defendant was charged, inter alia, with attempting to handle stolen goods, although the prosecution was unable to prove that the video recorder had in fact been stolen property. The House of Lords quashed the defendant’s conviction on the ground that she could not be guilty of attempting to handle stolen goods unless such property was shown to have existed. A majority of their Lordships refused to accept that the defendant’s belief that goods were stolen was sufficient of itself to result in liability. Such a result may have been the aim of the 1981 Act but their Lordships felt that Parliament would have to express its intentions more clearly before the courts would be willing to impose liability solely on the basis of what the defendant had thought she was doing, as opposed to what she was actually doing”[8].
The effect of this decision was shorted-lived, however. Given the facts of R v Shivpuri, “the House of Lords had little choice but to overrule its own previous decision in Anderton v Ryan. Shivpuri, whilst in India, was paid £1000 to act as a drug-carrier. He was required to collect package containing a consignment of drugs which would be delivered to him in England, and distribute its contents according to instructions which would be given to him. On collecting the package, the defendant was arrested by police officers, and he confessed to them that he believed its contents to be either heroin or cannabis. Further analysis revealed the contents of the package not to be drugs. The defendant’s appeal to the House of Lords against his conviction to be knowingly concerned in dealing with and harbouring a controlled drug was dismissed. It was held that s.1 of the Act was to be interpreted as requiring the defendant to be judged on the facts as he believed them to be. On this basis the defendant had taken that he believed to be more than merely preparatory in dealing with a controlled drug”[9]
The decision effectively overrules Haughton v Smith[10] and gives effect to s.1 of the 1981 Act in the manner intended by Parliament. Section 1 of the Criminal Attempts Act 1981 says: “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”[11]. Nevertheless, a number of interesting possibilities opens up, such as the defendant who commits attempted unlawful intercourse with a girl aged 17, believing her to be only 14.
In the Haughton v Smith[12] case “a lorry-load of stolen meat travelling from Liverpool to London was repossessed by the police, and thereby ceased to be stolen property for the purposes of handling stolen goods under s.22 of the Theft Act 1968. The lorry was allowed to continue south, where it was met by the defendants who had intended to unload the meat. The defendants were charged with attempting to handle stolen goods, but the House of Lords held that the defendants could not be guilty of attempting to commit the crime which, in the circumstances, was impossible to carry out”[13]
Before the 1981 Act there were differences on whether there was on these facts an attempt to handle, but now the answer should be clear.
“All legal systems seem to agree that impossible attempts are punishable if the behaviour itself produces apprehension or generates apprehension in the mind of an ideal observer. For example, if someone shoots into the bed where her intended victim usually sleeps, the courts readily impose liability for attempted murder. It also follows that pulling the trigger on an adventitiously unloaded gun with the intent to kill should be a proper basis for liability.”[14].
“As Professor Hart points out, the notion of attempt, unlike the notion of killing or stealing does not always require that the object in question should exist; it need require only that the offender believed that it did or might exist” [15]
“The target of controversy in the theory of attempts is not these cases of manifest danger but rather the range of cases where the action itself is totally innocent on its face. These are the cases typified by purchasing talcum powder (thinking that it is heroin), putting sugar in an enemy’s coffee (thinking that it is cyanide), or administering a harmless substance to a pregnant (thinking that it is an abortifacient). If these innocuous actions are criminal, it is only because the actor entertains certain thoughts: he wants to engage in an action that would clearly be criminal, if the facts were, as he believed them to be”[16].
CONCLUSION
“The principal provisions of the Criminal Attempts Act 1981, which it is suggested that it has make the law clear from the common law, are:
(a) the definition of the mens rea”[17], clearly means that the prosecution must prove that the accused intended the result, defined in the actus reus of the full offence (s.1 (1) of the Act).
(b) “The establishment of a new test of the actus reus”[18] which is defined in s.1 of the 1981 Act as doing ‘an act which is more than merely preparatory to the commission of the offence’. “It need not be a dangerous act. It is the mens rea, which converts the act into a crime. I may be driving my car towards to you. Only if the jurors know that I intent to run you down, can they convict of an offence. By s. 4(3) of the Act, the question whether the accused committed an attempt is for the jury, provided that there is sufficient evidence in law to support that finding: that is, the judge can rule that the act may but it is for the jury to determine that it was so. The judge cannot instruct the jury that a situation amounts to a ‘more than merely preparatory act’. However, he/she may tell the jury that there is no evidence what the accused has done that amounts to a more than merely preparatory act, and the issue can be withdrawn from the jury as it happens in Campbell[19] [1991] Crim. L. R 268. On the facts the accused was not guilty of attempted robbery even though he had reconnoitred a sub post office he had intended to rob and he had an imitation gun and a threatening note. He was arrested near to the office door. He said he was going back to his motorcycle, having decided not rob. Presumably he would not on this approach have been guilty until he had crossed the threshold of the sub post office”[20].
As Simister[21] suggests that’s not a helpful decision in the prevention of crime. If the facts had been left to the jury a conviction may well have been secured, and presumably he could have been convicted of a different attempted crime, attempted burglary for he had performed a more than merely preparatory action his way towards entering the building as a trespasser with intent to steal. The Court of Appeal said those cases had to be decided case-by-case approach, which is not a help to the juries”.
(c) “The abolition of the defence of impossibility, reversing Haughton v Smith”[22].
“Haughton v Smith and DPP v Smith [23]were taken to laid down a rule that a person was not guilty of attempt or conspiracy respectively where the facts were such that it was impossible to commit the full offence. For instance, if the accused put his hand into a pocket, having made up his mind to steal, he was not guilty of attempted theft if there was nothing in the pocket. Though this statement of law, which has been simplified for present purposes, had its defenders, most commentators thought it ridiculous, and the Law Commission and Parliament agreed. After, all the accused had demonstrated an intent to break the law. The law is now stated in the s.1 (2) of the Criminal Attempts Act 1981: … a person may be guilty of attempting of committing an offence to which this section applies even though the facts are such that the commission of the offence is impossible”[24]
(d) “The abolition of ‘sus’ (suspected loitering with intent to commit an arrestable offence) and the creation of an offence of interference with vehicles”[25].
“Section 9 of the Criminal Attempts Act 1981 repealed s. 4 of the Vagrancy Act 1824, as amended, which contained the offence which came to be known as ‘sus’. This crime had acquired a bad reputation because it was alleged that the police had used it selectively. In place of ‘sus’ there was instituted the crime of interference with vehicles in s.9 of the 1981 Act. Besides being narrower and more acceptable than ‘sus’, it got rid of a troublesome difficulty in the law. If a person was seen tampering with a car door, with which offence was he charged? Attempted of the car contrary to s.1 of the Theft Act 1968 would fail if he pleaded that he was going to joy-ride under s.12 of that Act; what about if the accused contend that he wanted to steal the contents, not the car itself. Section 9 remedies the difficulty: (1) a person is guilty of the offence of vehicles interference if he interferes with a motor vehicle or trailer or with anything carried in or on the motor vehicle or trailer with the intention that any offence specified in ss (2) below shall be committed by himself or some other person. The offences mentioned in subsection 1 above are: (a) theft of the motor vehicle or trailer or part of it. (b) theft of anything carried in or on the motor vehicle or trailer, and, (c) an offence under s.12 of the Theft Act 1968 (taking and driving away without consent); and, if it is shown that a person accused of an offence under this section intended that one of these offences should be committed, it is immaterial that it cannot be shown which it was”.[26]
From the above it is apparently that the law of attempts in English criminal law has been slightly changed for the good of every civilian in this country, although the present Act has not reach the perfect level.
The Criminal Attempts Act is the law but s. 1(1) of the Act does not really help the judge and the lawyer to say exactly where the line between acts of mere preparation and punishable perpetration is to be drawn in any given case. For example Tony was tried of attempted burglary of a house when he was caught by the owner trying to enter the premises by illegal means (truing to insert a tool into the door lock). Bearing in mind the s.1 (1) of the Criminal Attempts Act 1981 at what point has Tony in the imaginary case above taken the step, which is more than merely preparatory? When he buys the housebreaking tools? When he photographs the house? When he arrives in the street where the house is situated? When he enters Alex’s property? When he takes his tool from his pockets? Or, when he inserts a tool into the door lock? Where is the line to be drawn[27]?
Generally, what it in fact achieved was a wholesale replacement of the common law with a new statutory offence of attempt.
The limited approach taken from the s.1 of the Criminal Attempts Act 1981 to the meaning of more than ‘merely preparatory’ has unfortunate implications for efforts at crime prevention and protecting the public. The police can still lawfully arrest anyone behaving as the defendant did in Campbell, for example, on the basis that they have reasonable grounds for believing, that she/he is about to commit an offence (arrestable), but it appears in order to secure a conviction for attempt in such circumstances, they would have to hold back until that person has actually entered the post office and approached the counter before arresting him/her. Clearly this may mean putting post office and other staff, the general public and police officers, at unnecessary risk[28].
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[1] Gary Scanlan and Christopher Ryan , An introduction to criminal law , 1st edition , Financial Training Publications Ltd ,1985, p.136
[2] ibid p.136
[3] William Wilson, Criminal Law, doctrine and theory , 1st edition, Longman 1998, p.540
[4] (1855) 19 JP,CCR
[5] op cit 3 p.540
[6] op cit 1 p.141
[7] (1985) AC 560, HL
[8] Card, Cross and Jones, Criminal Law, 14th edition, Butterworths 1998, p.568
[9] ibid p.568
[10] (1975) AC 476
[11] P.R Glazebrook, Statutes on Criminal Law, 12th edition, Blackstones 2000
[12] (1975) AC 476
[13] Michael J Allen, Elliot & Wood’s cases and materials on Criminal Law, 8th edition, Sweet & Maxwell 2000, p.499
[14] op cit 1 p.144
[15] G. Williams, ‘The Lords…, or quis sustodiet ipsos custodes’ (1986) 45 CLJ 33 at p.35
[16] op cit p.138
[17] Michael Jefferson, criminal law, 4th edition, Financial Times Pitman Publishing 1999, p.352
[18] ibid p.352
[19] [1991] Crim. L. R 268
[20] Simister A.P and Sullivan GR, Criminal Law, theory and doctrine, Hurt Publications 2000, p.294
[21] ibid p.294
[22] op cit 17 p.352
[23] [1978] AC 979
[24] op cit 17 p.362
[25] op cit 17 p.352
[26] see n17 p.364
[27] Gary Scanlan and Christopher Ryan, An intro to criminal law, 1st edition, Financial Training Publications Ltd 1985, p.134
[28] Elliot Catherine and Frances Quinn, criminal law, 2nd edition, Longman 1998, p.172
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