The Actus Reus of a Criminal Attempt

An attempt is an inchoate offence, which is concerned with the preparatory stages of other criminal offences. Liability for criminal attempts is generally covered by s 1(1) of the Criminal Attempts Act 19811, which provides: "If with intent to commit an offence to which the 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. " Under this provision, a person can be convicted of attempting to commit any offence, which is either indictable or triable either way, but one cannot be convicted for attempting a summary offence.

 In this situation, Parliament may decide that this gap must be filled by a specific statutory attempt. 3 The actus reus of a criminal attempt is defined by s 1(1) of the CAA 1981, which requires the accused to have committed an act which is 'more than merely preparatory' to the offence committed. 4 Where trial is on indictment, the judge should determine whether there is evidence on which a jury could properly find that the accused's actions did go beyond mere preparation, but it is then for the jury to decide that question as one of fact.

5 How far does D have to go in order to be guilty of an attempt? The answer given by the common law was that, it was a matter of fact: was the act sufficiently proximate to (e. g. murder) to be properly described as an attempt to commit it? 6 Before the passing of the CAA, the courts evolved several tests designed to help a jury to decide whether a stage of a criminal attempt had been reached. One of such tests was the so-called 'last act' test derived from Eagleton7, i. e.

has the defendant with the intent to commit the full offence, done the last act in his power towards committing that offence, or as Lord Diplock put it in Stonehouse, has he "crossed the Rubicon and burnt his boats. " The other test derived from Stephen's Digest of the Criminal Law8 was, did the act form part of a series of acts, which would constitute its actual commission if not interrupted. 9 Neither test represents the current law. Rather, according to Lord Lane in Gullefer10, the words of the Act seek to steer a "midway course" between the two tests above.

Following the recommendations of the Law Commission, the CAA dispenses with any formal legal test of proximity. Instead, it addresses the proximity11 issue in terms of a question of fact to be placed before the jury12: "did D do an act with intent to commit an offence, which was "more than merely preparatory to the commission of the offence? " The new test looks forward from the point of preparatory acts to see whether the acts of the accused have gone beyond the preparatory stage.

According to Lord Lane in Gullefer, an attempt begins when the merely preparatory acts come to an end and the defendant embarks on the crime proper [or] the actual commission of the offence. The test at common law was too vague as there was no indication when acts passed over from being remote to being immediately connected with the intended offence. 13 It is for the judge to determine whether there is evidence from which a reasonable jury properly directed could conclude that the defendant had done acts more than merely preparatory to the commission of the full offence.

Then, it's for the jury to decide, having regard to the burden and standard of proof, where the line has to be drawn, but the judge can help them in an appropriate case by indicating by way of example, one circumstance well on each side of the line. However compellingly obvious it may seem that the particular conduct is more than merely preparatory, it is a misdirection for a judge to instruct a jury that they must find that the actus reus is proved. 14 The long title of the CAA indicates that the Act is to reform the previous law.

Accordingly, it would be reasonable to suppose that the common law issue on proximity was superseded. Despite this, in the early cases decided under the Act, references were made to pre-Act case law when addressing the question of sufficient proximity. 15 By contrast, subsequent cases, most notably Jones16; where the Taylor LJ stated that the correct approach was 'to look first at the natural meaning of the statutory words, not to turn back to earlier case law and seek to fit some previous test to the words of the section. '

However, it seems that pre-Act authorities may still be enlisted in some circumstances to assist the court in settling what acts may be more than merely preparatory. 17 There have been several decisions of the Court of Appeal18, which have sought to clarify the new test. In Widdowson19, the court considered that D had not performed every act necessary to achieve the consequence of obtaining services by deception; his acts were not immediately but only remotely connected with the offence alleged to have e been attempted; and using the words of Lord Diplock in Stonehouse, he had not 'crossed the Rubicon and burned his boats', i.

e. he had not reached the point of no return but could still have withdrawn from the commission of that offence. In Boyle and Boyle20, the Court of Appeal referred to the common law test propounded in Stephen's Digest of the Criminal Law (stated above). In Jones, the appellant was charged with attempted murder. The defence argument was that his act could not amount to attempted murder: what D had done was not more than merely preparatory because he still had to release the safety catch on the gun, put his finger on the trigger, and pull it.

The CA dismissed this argument, and held that it was open to the jury to regard this as attempted murder, and in his judgement Taylor LJ provided useful guidance as to the distinction between preparation and attempts:21 'But……… once he had got into the car, taken out the loaded gun and pointed it at the victim with the intention of killing him, there was sufficient evidence for the consideration of the jury on the charge of attempted murder.

It was a matter for them to decide whether they were sure those acts were more than merely preparatory. ' As indicated by common sense and by the CA in Gullefer and Jones, if the accused can be said to have got as far as having embarked on the commission of the offence, i. e. 'on the job'22, as where he tries to force a door of a strong room in order to enter it to steal or points a gun at someone with intent to kill, there's sufficient evidence of an act more than merely preparatory to the commission of the intended offence.

In such a case, it would be a major understatement to say there is no sufficient evidence that his acts had gone beyond being merely preparatory even though (since some further act was required of him), his acts were still at the preparatory stage. 23 In Gullefer, D distracted dogs in a greyhound race hoping that a 'no-race' would be declared and that he would get his i?? 18 bet back. CA quashed his conviction for attempted theft, as there was no evidence in which a jury could find that he was attempting to steal; there was much more he needed to do.

He was simply making preparations. Lord Lane CJ: 'It seems to us that the words of the Act of 1981 seek to steer a midway course', i. e. the statute provided a compromise between a preparatory act and the last act before the commission of the substantive crime. 24 The CA came to the same conclusion as in Gullefer in Campbell25, a more difficult decision to comprehend where the police had received a tip-off that a post office was to be robbed. D was arrested within a yard of the post office door, carrying a threatening note and a fake gun.

The CA held that he was still in the act of preparing to commit the crime of robbery; he was not, as yet, on the job since he had not even entered the building. 26 Fortunately, the court was able to convict him of unlawfully possessing an imitation firearm. The decision in Campbell was followed in Geddes27where D's conviction of attempted false imprisonment was quashed by the CA. The court harboured no doubt that D's intentions were as the prosecution alleged, but held ('with the gravest unease') that, since D had not spoken to or confronted any pupil at the school, his conduct had been merely preparatory and no more. 28

While the accused need not have performed the last act nor reached the point of no return to be liable for an attempt, Geddes along with Jones and Campbell, tends to indicate that everything required to commit the offence must be in place, including the intended victim and that the accused must have commenced to commit the crime. 29 While the above decisions of the CA adhere to the view that a distinction may be drawn between acts which follow the 'preparation phase' of the intended crime from those which fall within the 'commission phase', it is clear that courts have difficulty in identifying where the line between the two is drawn.

In Tosti30, Beldam LJ stated that, 'there may be actions which are preparatory, which are not merely so and which are essentially first steps in the commission of the offence'. In this case, CA upheld the D's conviction for attempted burglary on the basis that he had done an act showing that he had tried to commit the offence, rather than merely putting himself in a position to do so. However, if the quashing of the conviction in Campbell of attempted robbery was right, it is difficult to see how the instant decision can be correct.