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Cases - inchoate offences - attempts

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Anderton v Ryan (1985) HL
Attorney General's Reference No 1 of 1992 (1992)
Attorney General's Reference No 3 of 1992 (1992)
Boyle and Boyle (1987) CA
Campbell, R v (1991) CA
DPP v Nock (1978) HL
DPP v Stonehouse (1978) HL
Eagleton, R v (1855)
Gullefer, R v (1987) CA
Haughton v Smith (1975) HL
Jones, R v (1990) CA
Khan, R v (1990)
Millard & Vernon (1987)
Mohan, R v (1976) CA
O'Toole, R v (1987)
Partington v Williams (1979)
Rowley, R v (1992)
Shivpuri, R v (1987) HL
Tosti, R v [1997] CA
Walker and Hayles (1990)
White, R v (1910)
Whybrow, R v (1951)
Widdowson, R v (1985)
 

Anderton v Ryan (1985) HL

 

Triangle inidicating important information

 

^Attempts - impossibility - the Criminal Attempts Act 1981]

D bought a video recorder believing it to be stolen when it was not.

 

Held: D mistakenly believed - subjectively - it was possible to commit the full offence.  It was objectively impossible to commit it.   It would be an 'asinine' result if convicted.  Parliament cannot have intended such a result. s 1 of the Criminal Attempts Act 1981, which overruled the common law of attempt, creates the offence of attempting a crime, which is objectively impossible. 

 

Not guilty

Attorney General's Reference No 1 of 1992 (1992)

^[Attempts - more than preparatory - embarking on the full crime]

D attempted to have sexual intercourse with a girl without her consent, whilst in an intoxicated state. He pulled her behind a hedge and forced her to the ground.  He lay on top of her, lowered his trousers and interfered with her private parts.   He was unable to attempt penetration and have sexual intercourse with her. Did D have to attempt penetration of the woman's vagina with his penis in order to prove attempted rape?

 

Held: D's actions were more than merely preparatory.  He did not have to attempt or achieve penetration for attempted rape. (D had not embarked on the crime itself, and such a test is not relevant this represented the previous common law tests. Concerning the actus reus of attempts) 

 

Not guilty, but would be now

Attorney General's Reference No 3 of 1992 (1992)

^[Attempts - Recklessness in attempts]

D was acquitted of attempted arson with intent to endanger lives or with recklessness as to whether lives are endangered. 

 

Held: It was only necessary to prove an intent to cause damage by fire and then recklessness as to whether lives are endangered thereby.

 

Not guilty, but would be now

Boyle and Boyle (1987) CA

^[Attempts - must be more than merely preparatory]

D damaged the door of a house with a view to entering the premises as a trespasser and with intent to steal therein (attempted burglary).

 

Held: D intended to enter the house and steal and so commit the offence of burglary.  In breaking down the door D did more than a merely preparatory act.

The court was entitled to look back at previous cases to discover the tests that were applied before.

 

Guilty

Campbell, R v (1991) CA

 

Triangle inidicating important information

 

^[Attempts - more than preparatory - embarking on the full crime]

D planned to rob a post office. He drove to the post office on a motorcycle, walked towards the post office wearing a motorcycle helmet. D carried an imitation gun and had a threatening note in his pocket, which he planned to hand over to the cashier. D was arrested before he entered the post office.

 

Held: D had not 'embarked on the crime proper', he had not entered the post office, he had not attempted to remove the imitation firearm, he was not wearing a disguise, and his acts were "merely preparatory".

 

The test to be applied is the "Gullefer test" this test represents the true meaning of the words in s1 of the Criminal Attempts Act 1981.   Previous common law tests were irrelevant.

 

Not guilty of attempted robbery

DPP v Nock (1978) HL

Triangle inidicating important information

 

^[Attempts - Physical impossibility]

D agreed to produce cocaine.  This involved separating it from other substances in a powder that he believed contained cocaine.  The powder contained no cocaine and so D could not have produced any.

 

Held:  D could be liable if the indictment was loosely worded. If a specific item of property was on the indictment there could be no conviction if it was physically or legally impossible.

 

DPP v Stonehouse (1978) HL

^[Attempts - actus reus, proximity test under common law]

D, a former government minister in England, insured his life for his wife's benefit.  He then faked his death by drowning overseas. D was convicted of attempting to obtain insurance money by deception.

 

Held: D's acts were proximate enough to the complete offence of obtaining property by deception and therefore capable of amounting to an attempt.

D must have

"Crossed the Rubicon and burnt his boats".

Guilty 

Eagleton, R v (1855)

[Attempts - actus reus, proximity test under common law]

D attempted to obtain money from the guardians of a parish by falsely pretending to the relieving officer that he had delivered loaves of bread of the proper weight to the outdoor poor, when in fact the loaves were deficient in weight.

 

Held:

Parke B:

"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 ...".

Not guilty

Gullefer, R v  (1987) CA

 

Triangle inidicating important information

 

^[Attempts - more than preparatory - embarking on the full crime]

D climbed onto a greyhound racetrack in an attempt to stop a race. The dog on which he had placed a 18 bet was losing and he had hoped to recover his stake. The stewards decided not to stop the race.

 

Held: D, at the stage he jumped on to the track, could not be said to be in the process of committing theft and had not committed acts which were more than merely preparatory to the offence of theft.

Lane LCJ:

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".

Not Guilty

This test is often referred to as the "Gullefer Test"

Haughton v Smith (1975) HL

 

Triangle inidicating important information

 

[Attempts - Impossibility in law -]

D, and others, attempted to handle stolen corned beef by receiving them from a van at a motorway service area.  The police had earlier stopped the van, found the stolen goods and two PC's waited in the back of the van, others were following the van.

 

Held: The act of D must form part of a series of acts, which would constitute the actual commission of the offence if it were not interrupted. If the series of acts could never constitute a criminal offence then D cannot be guilty of attempt.

 

Lord Reid:

"A man may set out to commit a crime with inadequate tools. He finds that he cannot break in because the door is too strong for him. Or he uses poison which is not strong enough. He is certainly guilty of attempt; with better equipment or greater skill he could have committed the full crime."

Not Guilty [Now reversed by the 1981 Act] 

Jones, R v  (1990) CA

 

Triangle inidicating important information

 

^[Attempts - more than preparatory - embarking on the full crime]

D attempted to murder V.  First he bought a shotgun, sawed off the end of the barrel and test fired it. Later he climbed into the back of V's car and told him to drive to a secluded place. D removed the shotgun from his bag and pointed it at V. The safety catch of the gun was on. V grabbed the gun and threw it out of the window and made good his escaped.

 

Held: D must come close to committing the full offence, but there may be some acts left to perform before the substantive offence is committed. D had still had to remove the gun's safety catch, put his finger on the trigger and pull it, but he had performed sufficient acts that were more than "merely preparatory".

 

Guilty of attempted murder

Khan, R v  (1990)

^[Inchoate Offences - Attempts - Recklessness in attempts - nature of mens rea]

D attempted to have sexual intercourse with a girl without her consent, but he failed.

 

Held: Recklessness as to whether the girl consented was sufficient mens rea.

Russell LJ:

"The offences of rape and attempted rape are identical in all respects except that in the former sexual intercourse takes place and in the latter it does not. Therefore the mens rea of both offences is identical, namely an intention to have sexual intercourse plus a knowledge of or recklessness as to the woman's absence of consent."

Guilty

Millard & Vernon (1987)

[Attempts - Recklessness in attempts]

D1 and D2 were football supporters who repeatedly pushed against a wooden wall on a stand at a football ground in an attempt to break it or being reckless as to whether the wall was damaged.

 

Held: Mere recklessness was not sufficient. In an attempt to commit a substantive offence, if the substantive offence consists of an act leading to the result - requiring mens rea - full intent is required. If the substantive offence consists of mens rea relating to the result and some other circumstance, recklessness will suffice as a mens rea relating to the other circumstance.

"The result which would have been achieved if the offence had been taken to fruition was damage to the stand . . . the prosecution had to show . . . that it was this state of affairs which each appellant had decided, so far as in him lay, to bring about."

Not Guilty 

Mohan, R v  (1976) CA

^[Inchoate Offences attempts nature of mens rea]

D was driving his car and responded to a police officer's signal to stop.  D slowed down but then accelerated towards the PC. The PC moved out of the way, D drove off. D was charged with attempt to cause bodily harm by wanton driving at a police constable.

The jury were directed that the prosecution had to prove that D realised that such wanton driving would be likely to cause bodily harm.

 

Held: Intent is an essential ingredient of an attempt and is only mens rea of attempts.

Recklessness would often suffice as the mens rea for the full offence, attempt was a separate and often more serious offence with its own separate mens rea.

 

Not guilty

O'Toole, R v  (1987)

^[Mens rea of attempts]

D committed attempted arson, recklessly.

 

Held: 'Intention' required for an attempt.   'Recklessness' only required for the full offence.

 

Not guilty

Partington v Williams (1979)

 

Triangle inidicating important information

 

^[Attempts - Physical impossibility]

D took V's wallet from a drawer. D looked to see if it contained any money, intending to steal anything she found but it was empty.

 

Held: The substantive offence was impossible, so at that time the attempt could not be possible either.

 

Not guilty

Rowley, R v (1992)

^[Attempts to incite more than preparing the ground]

D left notes in public places offering money and presents to boys. These notes, which were not indecent in themselves, were designed to lure boys for immoral purposes. The question was whether he was guilty of attempted incitement of a child under the age of fourteen years to commit an act of gross indecency.

 

Taylor LJ:

"Here, the note went no further than to seek to engineer a preliminary meeting. No proposition or incitement to the offence had emanated from the defendant. At most he was preparing the ground for an attempt."

 

Note incitement amended by Serious Crime Act 2007

Shivpuri, R v (1987) HL

 

Triangle inidicating important information

 

 

[Attempts - impossibility - the Criminal Attempts Act 1981]

D attempted to deal and harbour drugs.   He believed he might be dealing with a prohibited drug such as cannabis or heroin whereas in fact the substance was harmless powdered vegetable matter, snuff or cabbage.

 

Held: The House of Lords overturned its previous decision in Anderton v Ryan.

Any attempt to commit an offence carries liability if D

  • Intended to carry out the substantive offence and

  • Did an act that was more than merely preparatory,

  • Even though completion was impossible.

Guilty

Tosti, R v  [1997] CA

[Inchoate Offences attempts must be more than preparatory]

DD attempted to burgle a barn. Around midnight, they were disturbed examining the padlock on the barn door, but ran off when they realised they were being watched. Their cars were parked in a lay-by nearby, and hidden in a hedge between the cars and the barn was an oxy-acetylene cutting set.

 

Held: The jury had been entitled to find that their acts were more than merely preparatory.

 

Guilty

Walker and Hayles (1990)

[Attempts - 'With intent' includes 'oblique or indirect intent']

D1 and D2 engaged in a fight during which V was injured when he was thrown over a third floor balcony.

 

Held: The mental element for attempted murder, could be inferred from evidence that D foresaw death as a virtually certain or highly probable consequence of his actions.  This was the principle in Nedrick.

 

Guilty

White, R v (1910)

 

Triangle inidicating important information

 

^[Impossibility due to incapacity]

D tried to kill his mother by poisoning her but did not use enough poison to successfully cause her death.

 

Held:

Bray I:

" the completion or attempted completion of a series of acts intended by a man to result in a killing is an attempt to murder even though this completed act would not, unless followed by other acts, result in killing."

Guilty

Whybrow, R v  (1951)

 

Triangle inidicating important information

 

^[Inchoate Offences attempts nature of mens rea of attempted murder]

D built an electric device to give an electric shock to his wife when she took a bath.

 

Held: Only intent to kill suffices for attempted murder, because

"the intent becomes the principal ingredient of the crime". 

Intent to cause grievous bodily harm was sufficient mens rea for the full offence of murder.

 

Not guilty

Widdowson, R v (1985)

 

Triangle inidicating important information

 

^[Attempts - must be more than merely preparatory]

D gave the name and address of a neighbour because he was not creditworthy. He wanted to buy a van on hire purchase. He accidentally signed the form with his own name. D was charged with attempting to obtain services by deception.

 

Held: D, in giving false particulars was merely a preparatory act in order to obtain hire purchase. If the hire purchase company responded favourably it still remained for D to seek a hire purchase agreement with them. D's acts could not be described as immediately rather than remotely connected with the specific offence being attempted.

 

Not guilty

 

 

 

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