The criminal law does not punish people

The criminal law does not punish people for their guilty thoughts alone but only for overt conduct accompanied by those guilty thoughts. Assess the validity of this statement with reference to the offence of attempt. Attempt is an inchoate offence concerned with the preparatory stages of criminal activity. All inchoate offences are so in their own right, but can only be charged in connection with some other offence. This is so that those intending to commit crimes are not punished, but conduct aimed at committing an offence is recognised as just as blameworthy if it fails to achieve its 'successful' purpose.

He who tries to kill but fails is as morally culpable as he who kills successfully. The difficulty for the law is where to draw the line on how far someone goes towards committing an offence before the act becomes criminal. The CRIMINAL ATTEMPTS ACT 1981 has replaced common law to clarify this area. This act defines attempt as that which is "more than merely preparatory to the commission of an offence with intent to commit that offence". When the natural meaning of the statutory words are in doubt by the courts, then the previous common law prevails.

They are, however, only persuasive. The question of whether an act is "more than merely preparatory" is a matter of fact and thus for the jury to decide. The judge will consider whether there is sufficient evidence to leave this to the jury JONES (1990). The jury must then consider whether D was simply preparing to commit the offence, or whether the accused had done something that was more than merely preparatory to the commission of the offence. Clearly there will be many cases where it is difficult to show that D has indeed crossed this arbitrary line.

For an act to be more than merely preparatory, D must have gone beyond purely preparatory acts and be 'embarked on the crime proper' – he must have moved from preparation to implementation of the crime. He must not, however, have performed the last act before the crime proper, nor reached the point of no return, as shown by AG'S REFERENCE 1 (1992). WIDDOWSON, (1986) however, showed the lack of clarity. D filled in an application for credit facilities under false details and was charged with attempting to obtain services by deception.

The Court of Appeal quashed the conviction based on the fact that not actually gone beyond preparation. D could not be liable unless he received a request to credit which was favourable and then acted upon that request. The Law Commission suggested that Diplock's 'rubicon' theory should be employed where if too many acts were left undone, no attempt was possible. (STONEHOUSE 1978). GULLEFER (1987) showed a man jumping onto a greyhound track to disrupt the race, however, he did no more than come onto the track, and had not used the disruption to get his money back and thus could not be guilty of going beyond mere preparation.

GEDDES (1986) saw a debatable decision arise in the first instance, when D was found with a bag including string, a knife and sealing tape and ran away leaving the bag behind. He was charged with attempted false imprisonment of a person unknown. The judge ruled that there was evidence of an attempt and the jury convicted. On appeal, the conviction was quashed when the doubt arose as to whether the act went beyond mere preparation. Contact had not even been established with any potential victim.

The Court of Appeal found two lines of questioning relevant in finding this 'line' dividing preparation and attempt: The first question was 'had D moved from preparation to implementation', and the second asked if the 'accused had done an act showing that he was actually trying to commit the full offence or had only got ready, put himself into the position of or equipped himself, to do so. Thus, the following year in TOSTI (1997), examining a padlock was sufficient to attempt burglary.

The men were actually trying to commit the full offence in doing so. The problem remains in the narrow interpretation of the actus reus. The police can arrest a defendant having reasonable grounds for believing that D is about to commit an arrestable offence, but it appears that in order to secure a conviction for attempt in these circumstances, they would have to hold back until that person actually entered the place of offence (Campbell), of which the consequences, particularly risk to the public, are obvious and unwanted.

Similarly, as in Geddes, there was no doubt about D's intention, but no evidence of the actus reus was found because D had not made contact with a pupil. It seems wrong that for an attempt of murder to be made with a gun, the accused would theoretically have to fire a shot at the intended victim. There are clearly difficulties in the law, and some attempt should be made to rectify this lack of clarity in order to guide the jury towards a more just outcome. The CRIMINAL ATTEMPTS ACT 1981 specifies that intention is required to commit this offence.

Case law has made it clear that an accused can only be liable for an attempt if they act with the intention of committing the complete offence – recklessness is not enough. This means that even if the offence can be committed recklessly, there will be no liability without intent (WHYBROW 1951). In murder, the only sufficing intention is that to cause death; an intention to cause GBH does not suffice for the attempt of murder. (R V MILLWARD AND VERNON 1987). Conspiracy and certain secondary party offences are exempt from the law of attempt.

On the subject of conditional intention, a person intends to do something dependant on some premise of a condition. The question remains as to whether this intent is sufficient for the mens rea of a criminal attempt. HUSSEYN (1977) and EASOM (1971) state that conditional intention is not enough to impose liability but in 1979, AG's REFERENCES 1 and 2 the Court of Appeal got around the problem by changing the theft of some specific thing to "some or all of the contents" of the area from which the theft was said to take place.

This also gives rise to questions of attempting the impossible. Before the CRIMINAL ATTEMPTS ACT 1981, impossibility was a defence to a charge of attempt. This effectively led to massive injustice. ANDERTON V RYAN (1985), even after the act declared that the statute had not been intended to affect the situation of physical impossibility by the Lords. SHIVPURI (1987) however, found that D was guilty even if the offence would be factually or legally impossible, which perhaps eliminates the mischief in the common law.

The law should aim to strike a balance between the protection of the public from the social danger caused by the contemplation of crime and the individual's fantastic thought. The decision in Shivpuri would appear a good one, but should a person be imprisoned for so long for a crime he did not commit? It seems more that the catching of such a person is more of a deterrent (which the law on attempts aims to create), yet denial of knowledge allows escape from liability.

Without the defence of withdrawal, and whilst it is possible to see the point of the Law Commission's argument that this should be an issue considered in mitigation of sentence, it would seem that sentencing itself is over-harsh. Even so, in order to set uniformity in sentencing the mens rea for the complete and equally dangerous offence reduces possible problems of using the US system of 'halves'. The Law Commission has recommended the offence of reckless attempt, which would perhaps solve the issue of mitigated or over-harsh sentencing and clarify the actus reus interpretation (Criminal Code Draft Bill 1989).

Without such legislation as that on attempts, the police would often have to choose between preventing an offence being committed, and prosecuting the offender – it would be ridiculous to stand by and wait for a bank robbery to be completed before an arrest could be made and punishment could be given. In addition, the person having had the mens rea for the offence and merely fail to commit the crime out of bad luck, or worse, incompetence! Therefore, while the law on attempts (for want of a better word) attempts to punish justly, it is not in all circumstances where it will currently succeed in doing so.