Brian was equipped with weed killer and in position when he took the next step and arrived at what he thought was Victor's home. The fact that he watched the house from across the road is certainly indicative of his determination to commit the offence, however, this act in itself may still be insufficient to determine guilt. In Campbell18 the defendant was arrested in front of a post office wearing a helmet, carrying an imitation gun and a threatening note. He had approached to within a few yards of the post office door. Watkins LJ stated there were too many acts left undone and those that had been done were 'indicative' of mere preparation.
CA held that a person cannot be convicted of an attempt when he 'has not even gained the place where he could be in a position to carry out the offence'. The proximity test may be applied to Brian's interrupted attempt to enter the garden by trying the lock on the side gate. Brian withdrew from his plan when he heard a noise and he had not gained entry into the garden. The CA in Widdowson19 confirmed Lord Diplock's 'Rubicon' test set out in Stonehouse20 as representing the law under the CAA21. Lord Diplock had said; 'Acts that are merely preparatory to the commission of the offence….
are not sufficiently proximate to constitute an attempt. They do not indicate a fixed irrevocable intention to go on to commit the complete offence unless involuntarily prevented from doing so… [D] … must have crossed the Rubicon and burnt his boats'. Brian at this stage had not necessarily burnt his bridges. He still had the opportunity not to go through with the crime. It is at this point however, that Brian's actions were becoming closer to the actual crime and could now be subject to the 'series of acts' test,22 leading to an increasingly likely potential of conviction.
This test was referred to by the CA in Boyle v Boyle23 where the defendants were convicted of attempted burglary after being found by a door with a broken lock. It states that; 'an attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission were it not interrupted. ' Lord Lane in Gullefer24 drew the elements of the proximity, Rubicon and series of acts tests together. According to this test Brian would have been deemed to have committed an attempt when he had 'embarked on the crime proper'.
Lord Lane said; "The words of the Act seek to steer a midway course. They do not provide…. that the Eagleton test is to be followed, or that.. [D]… must have reached a point from which it was impossible for him to retreat before the actus reus of an attempt is provided. On the other hand, the words give perhaps as clear a guidance as is possible in the circumstances on the point of time at which Stephen's "series of acts" begins. It begins when the merely preparatory acts have come to an end and [D] embarks upon the crime proper.
When that is will depend of course upon the facts in any particular case"25 The question as to when Brian actually 'embarked on the crime proper' is a matter for the jury based on the facts of the case. In Totsi and White26 the defendants drove to a barn which they planned to burgle with oxy-acetylene equipment, hid the equipment in a hedge, and ran off when they were interrupted. CA following Geddes upheld their convictions of attempted burglary. Beldam LJ in finding sufficient evidence that they were trying to commit the crime said that the question was whether they;
'had committed acts which were preparatory, but not merely so – so that it could be said the acts of preparation amounted to acts done in the commission of the offence. Essentially the question is one of degree; how close to , and necessary for, the commission of the offences were the acts which it was proved that they had done'. The fact that Brian was at the wrong house would not affect the outcome, even though it would have been impossible for Brian to attempt to commission the crime if he were at the wrong address. Following Shivpuri27 impossibility is no defence to attempt.
In Shivpuri, the defendant thought he had handled packs of heroin which turned out to be snuff but was nonetheless convicted of attempt by virtue of the fact that he believed he was committing a crime and intended to do so. Lord Bridge in this case introduced the concept of 'objective innocence' and said; 'what turns what would otherwise…. be an innocent act into a crime is the intent of the actor to commit an offence. ' It was held that a defendant can be guilty of an attempt even though commission of the full crime would have been impossible. On this basis, Brian should be judged by what he intended, believed and tried to do.
28 Similarly, the fact that Brian threw the canister at the marrows in the trailer instead of on Victor's premises as planned will not affect the outcome, since the primary intention was destruction of the marrows, regardless of setting. Brian upon seeing Victor on the road proceeded to throw the canister at the marrows. In so doing, he had undertaken the last act. This is classed as a complete attempt, which would render Brian liable for the offence and make conviction a likely outcome. Mens rea and actus rea have now both been satisfied and Brian does not appear to have any defence.
There may be a problem with evidence if Victor was not aware of anything being thrown at him and if, for example he did not see Brian. The prosecution would have to prove that Brian committed this attempt, particularly as there was no actual damage to the marrows and no substantive crime. Part 1a If Brian had filled the canister with highly flammable material rather than weed killer, he could be liable under s1 (1) of the CAA for an attempt to cause criminal damage by fire or arson with recklessness as to whether life would be endangered by his act.
Although as illustrated above, attempt is a crime of specific intent, it is possible for Brian to be convicted of attempt even though he was only reckless with regards to some of the elements of his actus reus. Pearman29 above defines intention in relation to attempts and this is governed by Woollin,30 which extended intention to include foresight and virtual certainty. This is a difficult area of law which was clarified in Attorney-General's Reference (No 3 of 1992). 31 Here a petrol bomb was thrown from a moving car, narrowly missing a parked car containing four passengers, with two pedestrians nearby.
The defendants were charged with aggravated arson, as the criminal damage was intentional, and they were found to have been reckless with regard to endangering life. The CA held that it was enough that the defendants intended to damage property, being reckless as to whether life would be endangered. See also Khan32 which is a case involving attempted rape. The judge had directed the jury that it was only necessary to prove the defendants had intended to have sex with a young girl, knowing the girl was not consenting.
Their convictions were upheld and recklessness with regard to whether or not she was consenting was held to be sufficient mens rea for the offence. The prosecution therefore, would not necessarily need to prove that Brian intended to endanger life; merely that he was reckless as to the consequences of his actions in throwing highly flammable material onto the marrows. The jury would have to determine if by attempting to damage property by fire, it is foreseeable or virtually certain that life would be endangered. It is not clear what kind of bike Victor was riding from the problem.
As Victor was in control of a moving vehicle (of any sort) a fire on his trailer could endanger his (or another road users) life in more ways than one. If he was riding a moped or a motorbike the potential of endangering life through explosion is a real one. Brian had mens rea in terms of his intention to damage the marrows and a strong case for actus reus could be made out when Brian committed the last act. Therefore it is highly likely that he would be held liable for this offence. Again, it would be left open to the jury to apply the tests and make a decision based on the facts of the case.