Victor had won the largest marrow (vegetable) competition for the last three years in a row. Brian was jealous and decided to destroy the marrows. He filled a metal canister with weed killer, which would slowly kill the marrows. Brian arrived at Victor's home and watched the house from across the road. Unknown to Brian he was at the wrong home, which did not have a vegetable garden. When no-one was around, he approached the side gate and tested the lock. Brian heard a noise before he could enter the garden. He ran back to the road where he saw Victor riding a bike with a small trailer containing vegetables.
He threw the canister at the marrows in the trailer but missed. (Victor was not aware that anything was thrown at him). Discuss the potential criminal liability that Brain might face. Would your answer be any different if (a) the canister contained highly flammable material rather than weed killer? (b) Brian gave up the enterprise when he heard a noise? Part 1 Brian, by embarking on a course of action to intentionally destroy Victor's marrows, would be potentially liable for the inchoate offence of attempt.
Inchoate1 attempt offences were originally developed by common law (still persuasive) and are now governed by statute in the Criminal Attempts Act 1981(CAA), applying to indictable offences. 2 Specifically, Brian would be charged under s1 (1) of the CAA which states; 'If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence. ' 3
Even though Brian has not committed a substantive offence, (in this case criminal damage contrary to s1 (1) of the Criminal Damage Act 19714) and no actual damage has been done, he will still be liable under s1 (1) of the CAA if on the evidence, the prosecution can prove beyond a reasonable doubt that he has taken steps to intentionally commission a crime, and that his actions have moved beyond 'merely preparatory'. Brian would be charged with attempting to commit the substantive offence, the penalties for which would be the same as if he had succeeded.
Normal criminal liability usually requires both culpability and harm,5 but Brian's attempt was unsuccessful by chance, not by choice and he is therefore are as blameworthy as if he had been successful in his attempt6. The prosecution would need to prove that Brian had the mens rea of attempt. The key mens rea requirement according to s1 (1) of the CAA is an intent to bring about the actus reus7. The problem states that Brian was jealous and decided to destroy the marrows. This clearly indicates intent.
In attempt cases however, there has to be 'specific intent', meaning that Brian must be shown to have intended to commit the full offence that was attempted, to which s1 (1) of the CAA applies. In Whybrow8 for example, it was held that although intention to commit GBH would suffice for murder, nothing less than intention to kill would suffice for attempt, thus 'the intent becomes the principle ingredient of the crime. 9' In Pearman10 it was held that the word 'intent' in s1 (1) of the CAA is to be given the same meaning as in the common law.
Brian's intention to destroy the marrows would therefore satisfy mens rea for attempt. He could not however, be punished on thoughts alone and a case would have to be made out to demonstrate actus reus. The point at which Brian's actus reus would satisfy the offence of attempt is not as straightforward; pinpointing the boundary between 'merely preparatory' and 'more than merely preparatory' has proved particularly difficult for the courts and remains something of an unresolved issue today, with no authoritative examples or guidance as to how different cases should be classified.
11 As a general rule, the minimum requirement for a guilty verdict is any overt act and the maximum is completion of the last act12. It would be for the jury to determine whether Brian was guilty once the judge had found sufficient evidence to safely allow them to deliberate, as set out in s4 (3) of the CAA. Where there is insufficient evidence however, the judge can direct a 'not guilty' verdict. (See Campbell) 13 Brian, once deciding that he was going to destroy the marrows, took the first step in commissioning the crime; he filled the canister with weed killer in the full belief and knowledge that this chemical would kill the marrows.
s1 (1) of the CAA requires Brian to act in a way that is 'more than merely preparatory'. The key word is 'merely'14 here, as the case law indicates that not every preparatory act can be read as an attempt. In Eagleton15 it was said that; 'Some act is required and we do not think that all acts towards committing a [criminal offence] are indictable. 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'
The court could adopt one of two possible approaches; a fault-centred approach whereby the only necessary proof is Brian's intention combined with a definite act to bring about the crime or the act-centred approach, in which case only unambiguous acts very close to the substantive crime would render Brian liable16. The latter is the preferred and most commonly seen approach, which would allow Brian an opportunity to withdraw from actually committing the crime. For example in Geddes,17 a controversial case of attempted false imprisonment, Lord Bingham CJ said;
"The line of demarcation between acts which are merely preparatory and acts which may amount to an attempt is not always clear or easy to recognise. There is no rule of thumb test. There must always be an exercise of judgment based on the particular facts of the case. It is, we think, an accurate paraphrase of the statutory test and not an illegitimate gloss upon it to ask whether the available evidence, if accepted, could show that D has done an act which shows that he has actually tried to commit the offence in question, or, whether he has only got himself in a position or equipped himself to do so. "