User:Lynettefan2626/Law Unit 3 Revision

Actus Reus of Attempts
The Actus Reus for attempts is "a person does an act that is more than merely preparatory to the commission of the offence"
 * The meaning of this is not defined in the statute, Criminal Attempts Act 1981.

Common Law Tests
Before the law was put into statute, there were common law tests such as the proximity test, last act test, the Rubicon test and the series of acts test to help the jury.
 * These tests are no longer binding, but they are persuasive.

Proximity Test - Only the acts immediately connected with the carrying out of an offence were to be considered for attempts.

Rubicon Test - Jurors look for the point of when The Defendant had crossed the point of no return.

Series of Acts Test - Defendant has to perform a series of acts that would have led to the commission of the full offence if they hadn't been interrupted. (Used in Boyle & Boyle 1986)
 * Attorney General's Reference (no. 1 of 1992) (1993) clarified that the Defendant need not have performed the last act before the crime proper. S/he need not have reached the point of no return.

Mens Rea of Attempts
Whybrow 1951 indicated that intention is the mens rea for attempts. The Defendant needs the same intention as they would for the full offence. So, for attempted theft, the defendant needs intention to deprive permanently. Recklessness is insufficient for attempts. This was decided in Millard & Vernon 1987.

Attempted Aggravated Arson and Attempted Rape
For the full offence of aggravated arson and rape, more than one element of mens rea is needed.

The same principle also works for attempted aggravated arson and attempted rape.
 * For attempted arson, recklessness is required for the element of endangering life.
 * For attempted rape, recklessness is required for the consent of the victim. (Confirmed in Khan & Others 1990)

So, intention for every element of mens rea is not always required. This was confirmed by Attorney General's Reference (no. 3 of 1992) (1994).

Attempted Murder
For attempted murder, the wrongdoer must have the intention to kill. Unlike for murder, the intention to commit GBH is insufficient.

The intention for attempted murder can be oblique as well as direct as per the full offence. This means that the jury can infer intention from the evidence if D foresaw death as a virtual certainty.

Nedrick 1986 and Woollen 1998 would need to be applied if the intention was oblique rather than direct. This was confirmed in Walker & Hayles 1990.

Conditional Intention
The decision in Easom 1971 was criticized because the defendant did intend to steal if there had been anything worth stealing.

A similar decision was made in Husseyn 1977

The decisions in these cases were seen as unfair on public policy grounds.
 * Many thieves are opportunists who steal whatever they find.

Courts have got around this problem with conditional intention.
 * This means that the defendant will intend to steal if there is something worth stealing.
 * Attorney General's Reference (nos. 1 & 2 1979) indicated that a conditional intention will do for intention.

This shows development in the law!

Factual Impossibility
The doctrine of factual impossibility is not a defense.

Factual Impossibility is when the defendant misunderstands the facts of the case. I.e. shooting a lump in a bed, thinking it is a person.
 * In factual impossibility, the defendants actions would have been criminal had they got their facts right.

Legal Impossibility
The doctrine of legal impossibility is a defense.

Legal Impossibility is when the defendant believes the act they are performing is criminal, when in fact it isn't. I.e. smuggling a substance into the UK that they believe to be illegal.

The defendant's objective is not a criminal offence, to they cannot be charged.

Problems with Common Law Attempts (Prior to 1981 Act)
Various tests have been developed and used but each of them has proved to be problematic.

Using different tests led to inconsistency in judgments and uncertainty.

Criminal Attempts became statutory in order to make the law more certain and so more consistent.

However, problems still remain.

Is a Clearer Definition Needed?
The USA has developed a different definition to MTMP which some have suggested is clearer. The alternative American test is "substantial steps... strongly corroborative of D's criminal purpose?"
 * This would still cause problems as "substantial steps" is vague.

Protecting the Public
The Law Commission sees a difficulty in striking a balance between the need for public protection and allowing an individual the right to think bad thoughts or to fantasise. The police have difficulty isolation the point when they need to intervene as in R v Campbell 1991. If they're too early, D will not be convicted, if too late, public are in danger.
 * The decision in Geddes seemed to show the courts were not concerned about protecting the public.

Inconsistencies
Attempts often have the same sentence as for the full offence. In the USA, the maximum sentence can only be half of the full offence. The Defendant will have the same Mens Rea. For example, someone charged with attempted murder will still be as dangerous as an actual murderer. For murder, D can use the partial defense to reduce the charge to voluntary manslaughter and so receive a lighter sentence. This is not possible for attempted murder, so they will receive a harsher sentence. This is unfair.

Attempting the Impossible
Attempting the impossible has caused confusion and concern.

Under old common law, the fact that committing the full offence was impossible provided a defense for any charge of attempts.
 * This was highlighted in Haughton v Smith 1975.

The judgment was subsequently overturned by the Criminal Attempts Act 1981.

Uncertainties remained until the Law Lords used the Practice Statement in Shivpuri to clarify the law.

Legal Impossibility is now a defense.

Attempts is Not Currently Available for Most Summary Offense
The Law Commission had suggested that attempts should be extended to include summary offences. This would be a more consistent approach. However, it is also pointless as most summary offences are only minor matters. For example, shop lifting.

Defence of Withdrawl
This is available in the USA, but not when D withdraws because D knows that s/he has been detected. D is able to use it if s/he voluntarily chooses to withdraw from the offence. This is unavailable in England for attempt because of the difficulties the courts might have deciding whether D voluntarily withdrew because of a change of heart. So, in England, if someone has done something MTMP, they may as well continue. Law Commission opposed this defense.

Law Commission Proposals
Law Commission proposed two new offences for attempts.
 * Attempt
 * Criminal Preparation

This would widen the "net" of attempts. People such as Geddes would be convicted.

But there would still be difficulty defining what "criminal preparation" is.