Actus Reus of Attempts
A person does an act that is more than merely preparatory to the commission of the main offence, as under the Criminal Attempts Act s1.
- Before the Criminal Attempts Act there were several tests to decide whether the defendant had actually done enough towards the commission of the offence.
- The 'last act' test - has the d done the last act he could do before committing the main crime?
- The 'proximity' test - Were the d's acts so 'immediately connected' to the actus reus of the offence as to justofy liability for attempt?
- The test is now 'More than merely preparatory' (MTMP)
- There have been many cases on MTMP, it is difficult to draw any general principle from them.
- AG's ref (no1 of 1992)(1993) - the d does not have to have performed the last act before the 'crime proper', nor need he have reached the 'point of no return'. In Gullefer the defendant must have 'embarked on the crime proper'
- In Geddes and Cambell in was held that they had not been MTMP. 1) Had the accused moved from planning to implementation? 2) Has the accused done an act showing that he was actually trying to commit the full offence, or had he only gotten so far as getting ready?
- The cases of Boyle and Boyle, Tosti and Jones are all cases in which they were found guilty.
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Mens Rea of Attempts
The defendant must have the intention as would be required for the full offence.
- If the prosection cannot prove intent the defendant will be not guilty. This was seen in the case of Easom and Husseyn, but was reolved in AG's ref (1+2 of 1979)(1979) where conditional intent was enough for the mens rea of an attempt.
- In Millard and Vernon it was held that recklessness was not sufficent for an attempt, even where it would suffice for the full offence. However, recklessness as to one part of the offence can be sufficent, as seen in AG's ref (no 3 of 1992)(1994)
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Attempting the Impossible
- Under the common law the HoL held that you cannot be guilty of attempting to commit an offence that is impossible.
- However, under s1(2) of the Criminal Attempts Act, it states that a person can be guilty for attempting to commit an impossible offence.
- In the case of Anderton v Ryan the HoL held that she was not guilty, however, this was overruled with the practice statement in the case of Shivpuri, it depends on the facts the defendant believed them to be.
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Is the law on attempts satisfactory?
- It is difficult to know exactly what conduct will be MTMP, but this test is still an improvement on the previous law which consisted of varoius different tests. It was difficult to know which test would be used, creating unpredicitabilty for lawyers and uncertainty. It has made it much easier for juries to apply the law, however, unjust outcomes may still arise. The law should be reformed to have two offences - Criminal attempt and Criminal Preparation. Criminal attempt would use the 'last act' test, wheras criminal preparation wouldve included conduct preparatory to the offence. However, it was not liked by solicitors and dropped.
- Necessary to have attempts as an offence in order to prevent the full offence being comitted in the future. However, how can cases such as Geddes and Cambell be justified?
- Attempt cannot be committed by an ommission. This leaves a gap in the law for deliberate starving, when death occurs it is murder but they cannot be charged with attempted murder before death occurs. The Law Commission recommended that attempted murder should allow for ommissions.
- It is unclear whether 'intent' means only 'direct' intent or 'oblique' intent also. The Law Commission found that although this may cause uncertainty, the broad approch is working and no other offence has a statutory defintion of intent. They would prefer a defintion of intent to be given in the code of general principles, to apply to all offences. Often, a higher level of mens rea is required for an attempt than for the full offence. Although they do not escape liability completely, it seems more favourable to those charged with attempts.
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Is the law on attempts satisfactory? 2
- Recklessness is not usually sufficent for an attempt, even where it is sufficent for the full offence - but contradicts with the ruling in Millard and Vernon
- The way around allowing conditional intent to suffice is by wording the indictment in a certain way. This is unsatisfactory - the law commission propose that it should be included in statute.
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