Preliminary Offence: Attempt (AQA A-Level Law 7162 — Paper 1)
Welcome to your comprehensive study guide for Criminal Attempts! In criminal law, society does not wait for a crime to be completely successful before stepping in. If someone plans a crime, sets out to do it, and actively begins executing it, the law intervenes. This topic forms a crucial part of Paper 1: Criminal Law. Don't worry if distinguishing between preparation and actual attempts seems tricky at first—we will break down the statute, key cases, and examiner pitfalls step by step.
1. Statutory Definition and Scope
The law on attempts is governed by an Act of Parliament: Section 1(1) of the Criminal Attempts Act 1981 (CAA 1981).
Statutory Definition:
"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."
Which Offences Can Be Attempted?
An attempt can only be charged for certain types of crimes:
• Indictable offences (e.g. murder, robbery).
• Offences triable either way (e.g. theft, burglary, assault occasioning actual bodily harm).
Which Offences CANNOT Be Attempted?
Under the Criminal Attempts Act 1981, attempts do not apply to:
• Summary offences (minor offences tried only in the Magistrates' Court).
• Conspiracy (you cannot attempt to conspire).
• Aiding, abetting, counselling, or procuring (secondary participation).
• Involuntary manslaughter (because one cannot intend an unintentional killing).
Key Takeaway: An attempt requires two essential building blocks: an actus reus (an act that is more than merely preparatory) and a mens rea (intent to commit the full offence).
2. The Actus Reus: "More Than Merely Preparatory"
The actus reus of an attempt is doing an act that is more than merely preparatory to the commission of the full offence. But where does simple preparation end and an attempt begin?
The Judicial Tests
The courts have developed clear guidelines to determine this boundary:
1. Embarking on the Crime Proper — R v Gullefer [1990]
Lord Lane CJ ruled that an attempt begins when the defendant embarks on the "crime proper" or the actual execution of the offence.
Facts: The defendant ran onto a greyhound track to distract the dogs, hoping the race would be declared void so he could reclaim his bet. His conviction for attempted theft was quashed because he had not yet approached the bookmaker to demand money; he was merely preparing the conditions to do so.
2. The Two-Stage Question — R v Geddes [1996]
The Court of Appeal asked two fundamental questions to guide juries:
1. Had the defendant moved from the realm of preparation into the area of execution?
2. Had the defendant actually embarked on the crime proper?
Facts: Geddes was discovered in a school toilet block with a knife, tape, and rope. However, he had not made contact with or approached any child. The court held that while he was ready to commit an offence, he had not yet embarked on the crime proper. His conviction for attempted false imprisonment was quashed.
3. Point of No Return Not Required — Attorney General's Reference (No 1 of 1992) [1993]
The defendant does not need to have reached the ultimate "point of no return" (the very last act before completion) to be guilty of an attempt. Once execution begins, liability can attach.
Key Case Comparison: Preparation vs Execution
• R v Campbell [1991] (Merely Preparatory): The defendant stood outside a post office carrying an imitation firearm and a threatening note. Because he had not entered the building or approached the counter, he had not yet embarked on the robbery.
• R v Jones [1990] (More Than Merely Preparatory): The defendant got into the victim's car, pulled out a loaded shotgun, and pointed it at the victim. Even though the safety catch was still on and the victim grabbed the gun, pointing the weapon was an act of execution (more than merely preparatory).
• R v Tosti [1997] (More Than Merely Preparatory): The defendants inspected a padlock on a barn door with metal-cutting equipment hidden in nearby hedges. Inspecting the lock with the tools at hand was an active step in executing the burglary.
Memory Trick — "P to E": Ask yourself: Is the defendant still Preparing the ground, or are they actively Executing the crime? (Geddes test).
Key Takeaway: Buying tools, traveling to the scene, or lurking outside is preparation. Pointing the gun, picking the lock, or demanding the money is execution.
3. The Mens Rea: Intention to Commit the Full Offence
The general rule for the mens rea of an attempt is straightforward: the prosecution must prove that the defendant had direct intention (or oblique intention under the Nedrick / Woollin test) to commit the completed offence.
Crucial Rule: Recklessness Is Not Enough for the Consequence
Even if the completed offence can be committed recklessly, an attempt usually requires specific intent to achieve the prohibited result.
The Golden Rule for Attempted Murder — R v Whybrow [1951]
For completed murder, the mens rea is an intention to kill OR an intention to cause Grievous Bodily Harm (GBH).
However, for attempted murder, the prosecution must prove an intention to KILL. An intention to cause GBH is insufficient.
Memory Hook: You cannot "attempt" to murder someone unless your actual goal was death!
Exceptions: Recklessness as to Circumstances
While the defendant must intend the core physical act or consequence, recklessness may suffice for the surrounding circumstances if the substantive offence allows it:
• Attempted Rape — R v Khan [1990]: The defendant must intend sexual penetration, but recklessness as to whether the victim consents is sufficient.
• Attempted Aggravated Arson / Criminal Damage — Attorney General's Reference (No 3 of 1992) [1994]: The defendant must intend to damage property by fire, but it is sufficient if they are merely reckless as to whether life would be endangered.
Conditional Intent
What happens if a thief breaks into a bag or car intending to take items only if there is something valuable inside?
• Attorney General's Reference (Nos 1 and 2 of 1979): A conditional intent (e.g. intending to steal "if there is anything worth stealing") satisfies the mens rea for attempted theft. Finding an empty pocket or an empty bag does not let the defendant off the hook!
Key Takeaway: The mens rea for an attempt is almost always stricter than the full offence: full intention is required, and for attempted murder, nothing less than an intention to kill will do.
4. Attempting the Impossible (Sections 1(2) & 1(3) CAA 1981)
Can someone be convicted of attempting a crime if it was physically impossible for them to complete it?
The Statutory Rules
• Section 1(2) CAA 1981: A person may be guilty of an attempt even though the commission of the offence is impossible.
• Section 1(3) CAA 1981: If the defendant's intention was to commit the offence, and their actions would have amounted to an attempt had the facts been as they believed them to be, they are treated as having intended the full offence.
Factual Impossibility vs Legal Impossibility
1. Factual Impossibility (NO Defence):
This occurs when the defendant attempts a real crime, but facts unknown to them make it physically impossible to succeed (e.g. picking an empty pocket, administering too little poison to kill, or shooting into an empty bed).
• R v Shivpuri [1986] (Overruling Anderton v Ryan [1985]): The defendant was caught carrying a suitcase that he believed contained illegal drugs (heroin or cannabis). Analysis showed the substance was harmless vegetable matter (snuff). The House of Lords held he was guilty of attempting to deal prohibited drugs because he intended to commit the offence and acted on the facts as he believed them to be.
2. Legal Impossibility (Valid Defence):
This occurs when a defendant believes their conduct is illegal, but the law does not actually prohibit it (e.g. believing it is a criminal offence to purchase goods on a Sunday). You cannot be convicted of attempting an imaginary or non-existent crime.
Key Takeaway: Under Section 1(2) and R v Shivpuri, factual impossibility is never a defence. The law judges the defendant based on the facts as they believed them to be.
5. Common Pitfalls and Exam Traps
Avoid these frequent exam errors to secure top marks in your Paper 1 scenario questions:
Mistake 1: Applying the "GBH Rule" to Attempted Murder
Wrong: Stating that intending serious harm (GBH) is enough for attempted murder.
Right: Always cite R v Whybrow and state clearly that attempted murder requires specific intent to kill.
Mistake 2: Confusing Preparation with Execution
Wrong: Arguing that buying weapons or driving towards the victim's house is an attempt.
Right: Apply R v Gullefer and R v Geddes. The defendant must have embarked on the "crime proper".
Mistake 3: Thinking Factual Impossibility Excuses Liability
Wrong: Arguing that a pickpocket cannot be guilty of attempted theft because the victim's wallet was left at home.
Right: Cite Section 1(2) CAA 1981 and R v Shivpuri to show that factual impossibility does not prevent an attempt conviction.
Mistake 4: Missing Conditional Intent
Wrong: Concluding that a defendant who drops an empty bag has no intent to steal.
Right: Apply AG's Reference (Nos 1 & 2 of 1979): conditional intent satisfies the mens rea for attempted theft.
6. Step-by-Step Problem Question Answering Framework
When an attempt scenario appears on Paper 1, follow this structured formula:
Step 1: Identify the Full Offence & Statute
State the full offence being attempted and define an attempt under Section 1(1) Criminal Attempts Act 1981.
Step 2: Establish the Actus Reus
• Ask: Did the defendant do an act that was more than merely preparatory?
• Apply the test from R v Gullefer (embarked on crime proper) and R v Geddes (execution vs preparation).
• Compare the facts to relevant case law (e.g. Campbell, Jones, or Tosti).
Step 3: Establish the Mens Rea
• Confirm whether the defendant had the direct/oblique intention to commit the completed crime.
• If attempted murder, highlight the requirement of intention to kill (R v Whybrow).
• If property was empty or valueless, apply conditional intent (AG's Ref (Nos 1 & 2 of 1979)).
Step 4: Consider Impossibility (if applicable)
• If the crime could not succeed, apply Section 1(2) CAA 1981 and R v Shivpuri (factual impossibility is no defence).
Step 5: Conclude Clearly
State whether the defendant is liable for the attempted offence.