The Criminal Attempts Act

In What Ways, If Any, Did The Criminal Attempts Act, 1981 Improved On The Common Law ? Is Further Reform Now Required?

Introduction

Common law is perhaps the most fundamental feature of the United Kingdom’s jurisprudence and a powerful tool for the judiciary. It allows the law to remain flexible and forever applicable to the modern changing world. As Sandra Fredman says, it seeks to, “prevent destitutions which arise as a consequence of the statutory regime.” However the precedent of case law and the judges’ wise interpretations must still be supplemented with a foundation of Parliamentary law. Therefore there are times where statute must be relied upon to provide an outline to which the common law can apply its interpretative benefits. The Criminal Attempts Act 1981 ‘attempted’ to do just this. Its goal was to create some form of codified law which would guide and clarify, standardize and provide a level of legal certainty where there was a lack of consistency. In this essay I will reveal the improvements which the Criminal Attempts Act brought but I will also expose the law’s current deficiencies and strategies for improvement. Mainly I will focus on the fact that the law appears to be too narrow concerning attempts in some areas and too wide in others. Also I will evaluate the question of whether reform is necessary and what options would be the most beneficial.

Improvements Of Impossibility Through The Criminal Attempts Act 1981

Several issues arose under the common law such as impossibility, unclear terminology of the actus reus, and uncertainty about the mens rea requirement. Prior to 1981 the common law did not acknowledge the fact that impossible crimes could nevertheless lead to a defendant’s conviction. This can be seen in Anderton v Ryan where the court’s dicta spoke of “objectively innocent acts” which cannot be turned into crimes even if the actus reus and the intent is present. This involved the defendant who was charged with handling stolen property in the form of a video recorder. She thought it to be stolen but this could not be proven by the court. Thus the court ruled that in common law a person who does the actus resus of an offence, with an intent to commit a specific crime which he believed to be possible (but was in fact not possible) is not convictable. It seems strange that although the actus reus and the mens rea were fulfilled that there was no crime simply because it could not be proven that the handled item was stolen. There was much concern at this time that this would cause the continuation of faulty logic and would lead to further cases being decided on this basis of impossibility.

It is precisely due to this inadequacy that the Law Commission decided to enact the Criminal Attempts Act. The Act clearly states that a defendant is convictable “even though the facts are such that the commission of the offence is impossible.” This was affirmed in future case law and Anderton was swiftly overturned in the drug smuggling case of Shivpuri. Here a man appealed against his conviction of drug smuggling, claiming that since the substance he thought to be drugs was actually nothing of the sort then he could not actually be guilty in law. The courts referenced the new statute and reasoned that all that was necessary was an act which was more than merely preparatory to the commission of an offence which the defendant did with the intention of committing an offence. This was consistent with the idea of intention being implied from a belief that the act committed was in fact illegal which is confirmed in section 1(3)(b) as “if the facts of the case had been as he believed them to be, his intention would be so regarded.” In the case of Shivpuri this is referred to as physical impossibility. This means that the crime cannot be committed as the elements do not equate to an offence. This is contrasted with legal impossibility as well as ineptitude impossibility. Ineptitude impossibility refers to those cases where the means that defendant uses makes the crime not sufficient to produce the desired result. An example of this would lie in putting too little poison or the wrong type of allergen in the victim’s food. Although normally the means would suffice, in this case the person’s incompetence causes the impossibility. Legal impossibility is best exemplified in the case of Taaffe in which the defendant mistakenly thought that importing currency was illegal. Although he possessed intent and was committing the actus reus he was found not guilty. This is because a crime of importing currency is not illegal and there must be an illegal crime behind the act for it to result in a conviction. An example of both a physical and a legal impossibility lies in Haughton and Smith. Here stolen goods were confiscated by the police and then an undercover officer pretended to deliver them to a third party who was then charged with handling stolen goods. Not only was this a physical impossibility as it is impossible to handle stolen goods but it is not a legally not a crime to handle goods that are not stolen.

Improvements Of Actus Reus Through The Criminal Attempts Act 1981

Before the advent of the Criminal Attempts Act there was a great deal of mystery surrounding what exactly had to be proven in the actions of the defendant to render a conviction. Such an instability and unsoundness proved to be potentially dangerous for both the defense and the prosecution. Common law suggested through precedent that the ‘last act’ was to be the most accurate test of liability for attempts. Thus only those actions deemed proximate to the successful completion were prosecuted. Even after the legislature was enacted, common law insisted on interpreting the words “more than merely preparatory” as being hazardously close to the completed act itself. This generated issues of proof regarding whether the defendant had truly overstepped his legally permissible boundaries. Such was the case in Gullefer where a man jumped on the racetrack in hopes of distracting the dogs so that the race would be forfeited and his money returned. The court strangely ruled that this was not beyond the stage of preparation as he had not confronted the bookkeeper and thus had not reached a convictable stage. Surely this logic hints at the dangers and problems that pervaded the law before the act established even the loose guideline of more than preparatory. However such a reliance on confrontation and the blurry line between preparation and execution was precisely what the act had sought to improve.

The statute’s shift of focus onto the actus reus being more than just preparation/planning was said to widen the previous scope of proximate or ‘last act’. This was to prelude and reinforce the decision in Jones in which the court said that “more than merely preparatory” was to have its regular meaning and in no way implied ‘last act.’ In this case the defendant was found to be guilty as he had pointed the gun at the victim and there was no need to show that he would still need to do subsequent acts such as cock the gun, aim, and pull the trigger. This is perfectly in line with the subjectivist idea that there is no need to wait until the crime is invariably close to being committed to punish it. Clearly the Criminal Attempts Act has helped establish that there be a wider (more subjectivist) encompassing idea of attempt which would apply to a greater range of criminal preparations.

The common law also seemed to leave a window open for the defense of abandonment. Such a case was brought up in Campbell in which the police found a man loitering around the post office with the tools necessary for robbery. Upon arrest and conviction he defendant claimed that the had intended to rob the bank but had reconsidered. This idea of repentance and lack of execution was well received by the courts and thus they found him not guilty as he was in no position to commit the offence. Part of the Criminal Attempts Act’s goals is to make such objectivist ideas obsolete and make crimes of obvious intent and near execution that much more inchoate. Meaning, the statute would seek to overturn such a decision to a scenario closer to Toothill where a burglar was arrested upon trying to enter the victim’s house and the court found that his entering as a trespasser and ringing the doorbell constituted execution of his plan to a degree meriting prosecution. This seems more in line with the idea of ‘substantial step’ towards the execution of the plan and seems to be somewhat more encompassing while not quite in line with the subjectivist’s proposed ‘first act’ step which the Act subtly tried to reach for.

Improvements Of Mens Rea Through The Criminal Attempts Act 1981

Before the introduction of the Criminal Attempts Act, common law was uncertain about the mens rea requirements for acts of attempt. There was questions about how stringent the mental element had to be. Prior to the establishment of this statute the mens rea required was very high and nothing less than intent was seen as essential. In Mohan it was found that only specific intent was sufficient for attempt to be found and that a reckless state of mind would not suffice. The court held that even though the defendant sped up his driving upon nearing a police officer, it had to be shown that he wanted to cause grievous bodily harm, not merely that he realized he could and was reckless as to whether he would. Such a high standard of mental premeditation was reversed in Khan where the courts rejected the defendant’s plea against his conviction of attempted rape. The court ruled that the mens rea for attempted rape and rape had to correspond and thus an intent to have sexual intercourse and recklessness as to whether the victim consents is enough to justify conviction. Such a claim was substantiated in Attorney-General’s Reference No 3 of 1992 where it was found that recklessness as to whether life would be endangered in the process of intended property damage was valid as it fit the completed offence. Thus it was prescribed that to ascertain the mental requirement for an attempted offence, it was necessary to look at the mental element of the full offence.

Current Problems With The Criminal Attempts Act 1981

Decisions based on objectivist views and common law interpretation reveals that most attempts, especially those of a violent nature, must involve a level of confrontation. Otherwise the burden of proof proves to be too heavy a load for the prosecution to bear. The injustice of this confrontation theory is seen in cases such as Geddes in which a man was found with all his gathered necessary supplies hiding in a toilet lying in wait for a child whom he could falsely imprison. The court ruled that because this was no more than simple preparation it did not qualify as “more than merely preparatory” and was seen as not yet implementing the plan. Such reasoning seems preposterous as it hardly seems plausible that the defendant must have touched a child to be convictable. The fact that he entered the building demonstrates not only a worrisome lack of security on the school’s part but a deliberate proximity which transcends the mere preparation he undertook in the privacy of his own home. It is this idea of confrontation which plagues the current law under the act and should be abolished. If “more than merely preparatory” allows criminals to lurk in bathrooms with children in the vicinity and go unpunished than another choice of terminology of the actus reus is needed.

Another issue latent in the current law is the fact that conditional attempts, those in which the defendant intends to commit the crime based on some circumstance that arises, are too reliant on the structure of the indictment. For instance, if a man breaks into a car to steal a purse but upon finding that there is no wallet in the purse leaves the premises then he could quite possibly not be convicted of attempted robbery/theft. It all depends on how the indictment is written. Thus if the prosecution structures it to say that the charge is “attempting to steal money from a purse” the criminal would have a better chance of acquittal than if the charge read “attempting to steal the contents of a purse” as there was no money present in the purse. Although the current act tried to remedy this idea of getting proximate to an impossible crime through the addition of section 1(2), there is still room for improvement.

The Law Commission itself has lamented the fact that the ‘more than merely preparatory’ test is too vague and uncertain causing the jury to be perplexed as to where to draw the decisive line of demarcation.

The Commission concerns itself with the idea of fair labeling and whether he who was about to attempt but reconsidered should be placed in the same category as he who successfully attempted but failed in true execution and fulfillment of the crime. As Sir John Smith argued, the law is keen to focus on the harm involved in the offence: “the idea that guilt depends on whether an act causes the harmful result, irrational though it may be, is deep-seated in our law.” When it comes down to it the man who is about to attempt murder and reconsiders, the man who attempts and fails to murder, and he who successfully murders are not seen in the same light by people and thus should be distinguished between in law. Further proof that ‘more than merely preparatory’ is unsatisfactory as an actus reus is evidenced in the fact that it applies to both possible and impossible attempts. Thus the interpretation of the phrase cannot mean confronting or gaining proximity to the last act as this cannot apply practically or logically to impossible situations.

Further Reforms To The Current Criminal Attempts Act 1981

The Law Commission recently released their proposals for improving the difficulties and ambiguities as discussed above. They are concerned with the pragmatic issue of the current law being too narrow in cases of preparation (as witnessed by Geddes) and would like to make the law more enveloping of all guilty parties. Their ideas involve separating the crime of attempt into two distinct offences. The first offence would be of criminal preparation and would include those acts which the defendant ‘did on the job’ while in the process of executing. The second offence would be of criminal attempt which would be more defined in terms of the last act. Both of these new offences would carry the same maximum penalty and the test of whether the conduct was last act would be left up to court as a matter of law. Rogers applauds the this proposal saying that if there were two auxiliary concepts, then one offence (“preparation”) could reflect the law’s condemnation of a defendant’s commitment to offend (a concept defined in terms of the subjectivist tradition) while the other offence (“attempts”) could reflect legal condemnation of the danger the defendant has outwardly created (a concept defined in terms of the objectivist tradition).

Clarkson is in staunch opposition to the proposal and elucidates this in several strong points throughout his article. Firstly he says that the creation of ‘offences of attempt’ comes too near to the ‘last act’ idea and would therefore be too narrow, making Jones wrongly decided. Secondly he holds that the offence of preparation could lead to over criminalization as it could be taken to attack preparation too early and lead to thought crimes. This would not only clog up the justice system with ever more amounts of cases but would also extend liability beyond the limits that Parliament intended. Another consideration which would add a great deal of unnecessary burden to the courts would be the fact that there is still not a clear enough distinction between the two kinds of attempt and this would cause a need for interpretive case law. Fourthly he points out that the Law Commission does not discuss the difference in liability for preparing to attempt the impossible and does not distinguish between penalties for preparing and attempting. This runs the risk of the jury opting for convicting on preparation as the distinction is not lucid and it seems to be a slightly less offensive crime. Besides being unreflective of the true crime committed, it is a case of faulty fair labeling and is inadmissible. Lastly the law is not compassionate to those who reconsider their actions. Ashworth points out that the farther a person gets away from the complete crime, the less the lack of completion can be attributed to moral luck alone.

Clarkson then goes on to say that although the current law is in need of reform, the best way forward would be enact a new statutory definition of attempt backed up by a list of examples indicating the type of conduct that should be encompassed by the new test. He wants to adopt the objectivist idea that the defendant has crossed a moral threshold (crossed the Rubicon) and has displayed a degree of moral culpability similar to that of committing the full offence. However he wants to take into account the fact that dangerous conduct is contained in mens rea and those who have dangerous intentions should have liability imposed. Therefore he takes the view that as soon as there is conduct that is corroborative of this aspect of danger, the attempter becomes a defendant. He proposes that the threshold should be one of “vivid danger” of the relevant crime being committed. This still however, seems to somehow fall short of the width necessary to deter attempts and thwart their commission. Although the wording would certainly clear up the bad law of Geddes, cases such as Gullefer would still possess a shroud of uncertainty. Perhaps a better method would involve what L Turner referred to as “unequivocally referable to the commission of the specific crime.” Such a choice of words would certainly make sure (as the word unequivocal implies) that there would be little doubt as to what the defendant was about to attempt and would not muddle the context with the word ‘danger’ as some crimes might be illegal but not necessarily dangerous (smuggling drugs).

Conclusion

Although the development of common law is a beneficial in nature, the addition of statute to the legal sphere of attempt has been both illuminating and necessary. Several deficiencies have been rectified and the scope of liability has been significantly widened. Despite the introduction of the Criminal Attempts Act 1981, the present law on the actus reus of attempt is in need of revision. In crimes of attempt liability should only be imposed early on those whose actions come close to the commission of the full crime and display a degree of moral culpability comparable to the one for the full offence. A reformulated definition would be much more effective than the Law Commission’s proposal for reform. This revamped definition needs to escape from the notion that the defendant should have embarked on the commission of the offence in a confrontational way. It is imperative that this new definition be supported by a clear list of examples of conduct constituting an attempt and that the interpretation of this definition becomes a matter of law. Only through clarification and consistency can the law on attempt reflect the blameworthiness of the defendant and the stage at which it is appropriate to convict.