In Qadir and Khan, Potter LJ emphasised that a judge when ruling whether something was capable of constituting a more than merely preparatory act, should keep in mind the nature of the crime attempted, distinguishing between offences where the focus is upon an act and those where it is upon a transaction. The fact that the accused is interrupted or desists prior to the doing the last act necessary to commit the substantive offence intended to commit does not prevent his conviction for attempt if he has performed a more than merely preparatory act.
Thus, there's no defence of withdrawal if the point has been reached where a more than merely preparatory act has been performed. 33 The only conclusion one can draw from the above cases is perhaps; that courts are becoming more prepared to look further back in time to define the point when mere preparation ceases and commission of the offence begins. The CA's various endeavours to reformulate the statutory test so that it can be applied meaningfully to the facts of differing cases have not been conspicuously successful.
However, the current law governing sufficient proximity in attempt is far more straightforward than it was under the common law, where incompatible legal tests competed for supremacy. 35 All that said, it does appear that the modern law of attempt may, on occasion, offer scant protection to potential victims of serious crime, as vividly illustrated by the acquittals in Geddes and Campbell. The decision in Campbell from the viewpoint of public safety is an unhappy decision.
Though the police may lawfully arrest a person doing such preparatory acts because he is, or they have reasonable grounds for suspecting that he is about to commit an arrestable offence36, they may feel obliged to wait until he has entered the post office and approached the counter before arresting him. Clearly, this may mean putting the post office and its staff, the general public and police officers at unnecessary risk.
Simester and Sullivan38 argued that the way forward is not to create a more broadly formulated law of attempt but to craft specific offences for particular situations, which presage the occurrence of serious harm. It is also argued that, to repair the gap exposed in Geddes, it could be made an offence to trespass with intent to imprison falsely or kidnap, and it is better to proceed in this piecemeal way than to resort to a broad and vague law of attempt susceptible to uncertainties of interpretation and oppressive modes of enforcement.
K. J. M.Smith argued in his article39that the position in Gullefer and Jones is unsatisfactory is three respects. First, whilst the judge can be confident that D's 'last act' may be ruled as capable in law of constituting an attempt, beyond that he's obliged to construe 'more than merely preparatory', virtually unaided. Lord Lane's 'midway course', where D has 'embarked upon the crime proper' or 'actual commission of the offence' hardly advances the matter in any constructive fashion. Secondly, it is impossible to say when and for what purposes pre-Act authorities may be employed.
Thirdly, as a matter of penal policy, the boundaries of attempt have been too tightly drawn. Circumstances where the actor is physically or temporally close to, or on the verge of his 'last act' appear to be the remotest point, which the CA is prepared to concede may be an attempt. 40 Glanville Williams41 argued that the question of what the law means by 'more than merely preparatory' be regarded as a question of law, which should be decided by the judges and not the jury, as this will involve leaving the jury to decide a question of law. 42
In conclusion, it is interesting to consider how the actus reus of attempt may be reformed. The English case authorities are difficult to reconcile, as problems have existed over what acts will be 'more than merely preparatory'. Some commentators43 have propounded the need for express new legislation adopting a substantial step' definition of an attempt. This approach is embodied in the Model Penal Code of the American Law Institute. By section 5. 01 of the Code: 'Conduct shall not be held to constitute a substantial step… unless it is strongly corroborative of the actor's criminal purpose'.
The Code helpfully provides a crystallised set of examples of what amounts to a substantial step, e. g. lying in wait, searching for or following the contemplated victim of the crime. 44 The advantage provided by these series of examples is that, it provides a concrete list of conduct, which qualifies for the inchoate offence and has the merit of certainty and can be expeditiously applied in practice. 45 Despite the conflicting appellate decisions, which have occurred over the last seventeen years on the actus reus of attempts, there are no imminent reforms planned to the Criminal Attempts Act 1981.