In this scenario, it is clear that Brian sets out with the intention to commit a substantive offence. On balance, it would be very difficult to determine beyond all reasonable doubt that Brian gave up the enterprise because he was interrupted rather than because he changed his mind. Whether or not Brian would be held liable for attempt at the point at which he gave up, having heard a noise, is questionable. The evidence here would not be as convincing as in part 1; where Brian had done everything he possibly could to supply the missing element of the crime.
The question asked above by Bedlam LJ in Totsi33 may be relevant here, that is; 'how close to, and necessary for, the commission of the offences were the acts which it is proved that they had done? ' The job of the jury therefore, would be to determine 'if' or 'when', Brian crossed the Rubicon and burnt his bridges (assuming the judge leaves the decision to them), i. e. moving from merely preparatory to preparatory, or 'having embarked on the job proper.
It is not clear how the jury, faced with the acts so far – filling the canister, going to Victor's house, watching the house, approaching the gate and trying the lock – would decide. The jury has the task of not only declaring the law, but in this case, determining what the law is by defining the meaning of 'more than merely preparatory'. There is on this basis, a wide margin of discretion, and potential for inconsistent verdicts34. If the decision in Campbell35 were followed, Brian would be acquitted. If however, Totsi36 were applied, Brian would face conviction.
Brian having abandoned the commission of the crime may be treated more leniently, however, no case law has yet accepted abandonment as a defence to attempt37. The view that may be taken here is that the law has not failed as a deterrent until Brian has taken the last act, and that he should be given a second chance and incentive for reform, however the counterargument is that there is no moral difference between complete or incomplete attempts and that the law should not 'subordinate itself to the vagaries of fortune by focusing on results instead of culpability.
These opposing positions with regard to liability for attempt serve to further illustrate the point above that Brian's liability would come down to a question of subjective opinion formulated by the jury, based on the facts of the case.
Books Allen, M Textbook on Criminal Law (8thed. Oxford University Press 2005) Ashworth, A Principles of Criminal Law (4thed. Oxford University Press 2003) Baird, N Criminal Law Questions & Answers series, (5thed Cavendish Publishing, 2005) Herring, J Criminal Law, Text, Cases and Materials (Oxford University Press, 2004)
Martin, J & Storey, T Unlocking Criminal Law (Hodder & Stoughton 2004) Articles Arenson, KJ The pitfalls in the law of attempt; a new perspective J. Crim. L. 2005 69(2) 146-167 The Law Commission Report on Attempt and Impossibility; (1) 'The Elements of Attempt (Dennis) and (2) Questions of Impossibility (Cohen)'  Crim. LR 758, 773 Smith,KJM An Objectivist's Account of Criminal Attempts (1998) 62 MLR 438 Stannard, JE Making up for the missing element – a sidways look at attempts (1987)7 LS 194 Tufal, A Preliminary Crimes www. lawteacher. net/criminal/inchoate 06/11/05