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Title : Anderton v Ryan
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Status:  Negative Judicial Treatment

*560  Anderton Respondent v Ryan Appellant

House of Lords

9 May 1985

[1985] 2 W.L.R. 968

[1985] A.C. 560

Lord Fraser of Tullybelton, Lord Edmund-Davies, Lord Keith of Kinkel, Lord Roskill and Lord Bridge
of Harwich

Parker L.J. and Forbes J.

1985 Feb. 14; May 9

1984 April 4

Crime—Attempt—Handling stolen goods—Defendant's belief that goods stolen—No evidence that

goods in fact stolen—Whether criminal attempt established—Criminal Attempts Act 1981 (c. 47),
s. 1

The defendant was charged with dishonestly attempting to handle a video cassette recorder
knowing or believing it to be stolen, contrary to section 1(1) of the Criminal Attempts Act
1981.1 The prosecution adduced evidence that the defendant had received the recorder into
her possession at a time when she believed that it had been stolen, but there was no evidence
as to whether the recorder had in fact been stolen. The justices held that the defendant could
not be convicted under section 1 of the Act merely because she thought that the recorder had
been stolen, and they dismissed the information. The Divisional Court of the Queen's Bench
Division allowed an appeal by the prosecutor.

On appeal by the defendant:-

, allowing the appeal (Lord Edmund-Davies dissenting), that on the true construction of section
1 of the Criminal Attempts Act 1981, in particular subsection (3), a defendant could not be
convicted of an attempt to commit an offence where, whatever his belief, the completed act
intended by him could not, on the true facts, have amounted to a criminal offence; and that,
accordingly, since it had to be assumed that the video recorder had not been stolen and the
defendant's intended action could not have amounted to a criminal offence, she could not be
guilty of attempting to handle stolen goods (post, pp. 569E-F, 573D, 580C-E, 581C-E,
584B,E).

Reg. v. Smith (Roger) [1975] A.C. 476, H.L.(E.) considered.

03/08/2015 Delivery | Westlaw India Page  3

Per Lord Fraser of Tullybelton, Lord Keith of Kinkel, Lord Roskill and Lord Bridge of Harwich. (i)
Section 1(1) and (4) of the Act of 1981 provide a statutory substitute for the common law
offence of attempt abolished by section 6. Section 1(2) and (3) are in a sense complementary
to each other: subsection (2) covers the case of a person acting in a criminal way with a
general intent to commit a crime in circumstances where no crime is possible; subsection (3)
covers the case of a person acting in a criminal way with a specific intent to commit a
particular crime which he erroneously believes to be, but which is not in fact, possible of
achievement (post, pp. 569E-F, 573D, 579F, 581A-C, 583C, H - 584B).

(ii) A certificate pursuant to section 1(2) of the Administration of Justice Act 1960 should be
specifically limited to the question *561  of law arising on the particular facts of the case. A
certificate postulating hypothetical sets of facts is undesirable (post, pp. 569E - F, 573D, 575D
- E, 582G).

Decision of the Divisional Court of the Queen's Bench Division, post, p. 563B; [1985] 2 W.L.R.
23; [1985] 1 All E.R. 138 reversed.

The following cases are referred to in their Lordships' opinions:

1 Director of Public Prosecutions v. Nock [1978] A.C. 979; [1978] 3 W.L.R. 57; [1978] 2 All E.R.
654, H.L.(E.).
1 Reg. v. Brown (1889) 24 Q.B.D. 357; 61 L.T. 594
1 Reg. v. Collins (1864) 9 Cox C.C. 497, C.C.A..
1 Reg. v. Donnelly [1970] N.Z.L.R. 980
1 Reg. v. M'Pherson (1857) Dears. &; B. 197

1 Reg. v. Shivpuri [1985] 2 W.L.R. 29; [1985] 1 All E.R. 143, C.A. .

1 Reg. v. Smith (Roger) [1975] A.C. 476; [1974] 2 W.L.R. 1; [1973] 3 All E.R. 1109, H.L.(E.) .

1 Rex v. Fuschillo [1940] 2 All E.R. 489 ; 27 Cr.App.R. 193, C.C.A..

1 Rex v. Percy Dalton (London) Ltd. (1949) 33 Cr.App.R. 102, C.C.A. .

1 Rex v. Sbarra (1918) 13 Cr.App.R. 118, C.C.A..

1 Webley v. Buxton [1977] Q.B. 481; [1977] 2 W.L.R. 766; [1977] 2 All E.R. 595, D.C. .

No additional cases were cited in argument in the House of Lords.

The following cases are referred to in the judgment of Parker L.J.:

1 Reg. v. Donnelly [1970] N.Z.L.R. 980

1 Reg. v. Smith (Roger) [1975] A.C. 476; [1974] 2 W.L.R. 1; [1973] 3 All E.R. 1109, H.L.(E.) .

The following additional case was cited in argument in the Divisional Court:

1 Reg. v. Korniak (1982) 76 Cr.App.R. 145, C.A..

CASE STATED by Greater Manchester justices sitting at Manchester.

On 10 April 1983 an information was preferred by the prosecutor, the Chief Constable of Greater
Manchester, against the defendant, Bernadette Ryan, that she between 6 April 1983 and 10 April
03/08/2015 Delivery | Westlaw India Page  4

1983 at Manchester did dishonestly handle stolen goods namely a video recorder knowing or
believing it to be stolen, contrary to section 22 of the Theft Act 1968. At the hearing on 6 June
1983, the prosecutor preferred a further information that the defendant between 6 April and 10
April 1983 in the City of Manchester, did dishonestly attempt to handle a video recorder knowing
or believing it to be stolen, value £500, contrary to section 1(1) Criminal Attempts Act 1981. The
defendant consented to be tried summarily and pleaded not guilty. The prosecutor at the outset of
the proceedings indicated he wished to offer no evidence on the allegation of handling and invited
the court to dismiss that charge, which the justices did.

The justices heard the remaining information on 6 June 1983 and found the following facts. Police
Constable 2964 D Nattan visited the home of the defendant at her request, at 12, Fancroft Road,
Wythenshawe, Manchester, on Sunday 6 April 1983 at 6.30 p.m. in *562  respect of an alleged
burglary at those premises. During the course of the inquiries, the officer's suspicions were
aroused when the defendant admitted to him that she had bought the video recorder for £110
from a person whom she declined to name. Upon further questioning, the defendant said, "I may
as well be honest, it was a stolen one I bought, I should not have phoned you." When Police
Constable Nattan said to the defendant that to pay £110 for a video recorder was "well below the
price of a video. You obviously knew it was stolen didn't you?" The defendant replied "Yes, I knew,
but it was damaged at the back. I had to fix it before it would work." When further questioned as
to why she had bought it if she knew it to be stolen, the defendant replied, "Well everyone's at it. I
didn't think I'd get discovered." Police Constable Nattan did not at any time see the video recorder
and was thus unable to give evidence of its condition or value or to produce it. The justices formed
the view at the end of the prosecution case that there was evidence upon which they could find as
a matter of fact that the defendant had received into her possession a video cassette recorder and
that at the time of her receipt into her possession she was of the belief that it was stolen goods.
No evidence was adduced before them to show that the goods had been stolen or of their value. At
the end of the prosecution case the defendant made a final submission.

It was contended by the prosecutor that a person who believed he was committing an offence
could be convicted under section 1(1) of the Criminal Attempts Act 1981 merely for that belief
and, therefore, he was under no obligation to prove the goods in question had been stolen.

It was contended by the defendant that the evidence so far as it went, could support a charge of
handling only and not attempted handling. The defendant had taken possession of the video
recorder which she knew or believed to be stolen and such evidence as there was pointed towards
the full offence of handling but not one of attempt. The defendant further contended that an
essential element was missing as the prosecution were unable to prove the goods were stolen, and
that there was no evidence of a theft other than what the defendant said.

The justices were of the opinion that the mere fact that the defendant believed the goods to be
stolen was inconclusive in the absence of any evidence tending to show that the goods were, in
fact, worth more than the £110 which the defendant paid for them. They were further of the
opinion that although section 1(2) of the Criminal Attempts Act 1981 stated that "A person may be
guilty of attempting to commit an offence to which this section applies even though the facts are
such that the commission of the offence is impossible" that was not sufficient authority for the
contention that the defendant's mere belief that the goods were stolen, was sufficient to make out
a charge of attempted handling. Accordingly they rejected the prosecutor's contention that a
person might be convicted of an attempt to commit an offence merely because he thought he had
committed that offence. They dismissed the information.

The prosecutor appealed. The questions for the opinion of the court were whether the court was
right to dismiss the information, and whether the failure of the prosecution to prove that the goods
in *563  question were or had been stolen goods was fatal to a charge of attempted handling of
stolen goods.
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Representation

1 David A. Poole for the prosecutor.

1 Peter Crichton-Gold for the defendant.

PARKER L.J.

This is an appeal by case stated by Greater Manchester justices in respect of an adjudication made
by them on 6 June 1983. On that day the defendant appeared to answer two informations. The
first was that she, between 6 April 1983 and 10 April 1983 at Manchester did dishonestly handle
stolen goods, namely, a video recorder knowing or believing it to be stolen contrary to section 22
of the Theft Act 1968. The second information, which was preferred on the same day as the
hearing which had been fixed for the first, was that the defendant, between 6 April and 10 April
1983, in Manchester did dishonestly attempt to handle a video recorder knowing or believing it to
be stolen, value £500, contrary to section 1(1) of the Criminal Attempts Act 1981.

The prosecution, for reasons which will shortly be clear, tendered no evidence on the charge of
receiving or dishonest handling, but proceeded only with the charge of attempt. In the result, the
charge of handling was dismissed. The case finds the following facts. Police Constable Nattan
visited the home of the defendant at her request on 6 April 1983 in respect of an alleged burglary.
During the course of the inquiries that he then made his suspicions were aroused when the
defendant admitted that she had bought a video recorder for £110 from some person whom she
declined to name. Upon further questioning the defendant said: "I may as well be honest, it was a
stolen one I bought, I should not have phoned you." When Police Constable Nattan said to the
defendant that to pay £110 for a video recorder was well below the price of the video "you
obviously knew it was stolen, didn't you?", the defendant replied "Yes, I knew, but it was damaged
at the back. I had to fix it before it would work." When further questioned as to why she had
bought it if she knew it to be stolen the defendant replied: "Well everyone's at it. I didn't think I'd
get discovered." Police Constable Nattan did not see the video recorder and thus could give no
evidence about its condition or value.

There then follows a paragraph which is somewhat oddly drafted, but which is fully understandable
in the circumstances. It reads:

"We formed the view at the end of the prosecution case that there was evidence upon
which we could find as a matter of fact that [the defendant] had received into her
possession a video cassette recorder and that at the time of her receipt into her
possession she was of the belief that it was stolen goods."

There clearly was evidence on which the justices could so find and since there was a submission
of no case at the end of the prosecution case the justices were clearly looking at the question to
see whether they should uphold the submission rather than that they should find specific facts on
the very issue which was before the court. No evidence was adduced that the goods had been
stolen or as to the value of the goods.

*564

The point which is raised before this court is one which has apparently not been ventilated
previously and arises under the Criminal Attempts Act 1981. What is submitted on behalf of the
defendant is that no offence under section 1 of that Act has been committed and that the justices
were entirely right to uphold the submission that was made, it being, so they contend, essential
that the prosecution should prove that the goods were stolen goods. Alternatively, it is submitted
03/08/2015 Delivery | Westlaw India Page  6

that if they remained in doubt whether or not the goods were stolen, it would be impossible for an
offence under section 1 to be made out.

The prosecution appeal and they appeal on a very simple basis. They say that the wording of
section 1 is clear and that it was designed to deal with the very sort of cases to which Reg. v.
Smith (Roger) [1975] A.C. 476 referred. The law as it then stood was stated in the speech of Lord
Hailsham of St. Marylebone L.C. in the following terms, at p. 490:

"In my view, it is plain that, in order to constitute the offence of handling, the goods
specified in the particulars of offence must not only be believed to be stolen, but
actually continue to be stolen goods at the moment of handling. Once this is accepted
as the true construction of the section, I do not think that it is possible to convert a
completed act of handling, which is not itself criminal because it was not the handling
of stolen goods, into a criminal act by the simple device of alleging that it was an
attempt to handle stolen goods on the ground that at the time of handling the
accused falsely believed them still to be stolen. In my opinion, this would be for the
courts to manufacture a new criminal offence not authorised by the legislature."

Further on in his speech, at p. 493, quoting from Turner J. in the New Zealand case of Reg. v.
Donnelly [1970] N.Z.L.R. 980 he sets out the six categories mentioned by that judge of which the
sixth is as follows:

"he may without interruption efficiently do every act which he set out to do, but may
be saved from criminal liability by the fact that what he has done, contrary to his own
belief at the time, does not after all amount in law to a crime."

It would be quite plain that on the state of the law prior to the Criminal Attempts Act 1981 what
had occurred in this case was insufficient to amount to an attempt. The only question is whether
the Act has converted it into an attempt.

The offence itself is described as follows in section 1(1):

"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."

Subsection (4) provides: "This section applies to any offence which, if it were completed, would be
triable in England and Wales as an indictable offence, other than ..." and then there are certain
exceptions which are not immediately relevant. Then come the two vital subsections subsections
(2) and (3), which provide: *565 

"(2) A person may be guilty of attempting to commit an offence to which this section
applies even though the facts are such that the commission of the offence is
impossible. (3) In any case where - (a) apart from this subsection a person's
intention would not be regarded as having amounted to an intent to commit an
offence; but (b) if the facts of the case had been as he believed them to be, his
intention would be so regarded, then, for the purposes of subsection (1) above, he
shall be regarded as having had an intent to commit that offence."
03/08/2015 Delivery | Westlaw India Page  7

In the present case, the prosecution were unable to prove one way or the other whether these
goods were stolen or were not, but the defendant believed them to be so. What is submitted is
this. That it cannot be said that the facts in this case are such that the commission of the offence
is impossible, therefore there is no room for the application of subsection (2). It is also submitted
that since the defendant had committed every act which on her part fell to be committed, this
cannot be regarded as coming within the words "doing an act more than merely preparatory to the
commission of the offence." Finally it is submitted that since subsection (1) is dealing with
attempts and subsection (4) refers to incomplete offences, it cannot be supposed that Parliament
intended to cover a case where the accused had done every act which on her part or his part
would have constituted the commission of the offence but for the fact that, in the case of handling,
the goods were not or could not be shown to be stolen. The draftsmanship of this section clearly
caused considerable difficulty at the time. The difficulties are mentioned in Smith and Hogan,
Criminal Law, 5th ed. (1983), p. 264. It is not possible entirely to reconcile the wording of every
bit of every subsection, but one thing would appear to be plain and that is this. If it had been
possible to prove positively that the goods in this case were not stolen goods, then the case would
have fallen straight within section 1(2), because the facts would then have been such that the
commission of the offence was impossible. That would mean that if the prosecution had gone or
been able to go as far as to show that it was quite impossible for any criminal act in the nature of
the full offence to be committed they would succeed in finding the accused guilty by virtue of
section 1(1) and (2). But it is said that if the position remains open and therefore there might have
been the commission of the full offence, the position is such that there must be an acquittal. This
appears to me so bizarre that I cannot attribute to it Parliamentary intent.

There are further results which I find it impossible to attribute to Parliament. Suppose, for
example, that an accused attempts to have intercourse with a girl whom he believes to be below
the age of consent albeit that is not the case. The offence is impossible, because the girl is over
the age of consent. If he has only attempted to have intercourse but has not succeeded there
would clearly be an attempt and section 1 would apply. It is impossible to suppose that Parliament
intended that if he had not only attempted intercourse but succeeded he should then be found not
to have committed any offence. It may be that the way to reconcile such matters is this. If
somebody (and sticking to the example *566  that I have already given) finally succeeds in the
act of intercourse, he must, prior to that, have committed acts which were more than merely
preparatory and therefore the final act must have been preceded by acts which were themselves
chargeable.

An alternative is that the acts which are required to be proved to have been done by an accused
are only part of the offence and an offence is incomplete unless all the facts exist which the
prosecution would need to prove to establish the commission of the full offence. If that be so,
then, since to prove the full offence it is necessary to show that the goods were stolen, an inability
to prove that ingredient means that the facts do not exist or cannot be shown to exist which
constitute the full offence. Whichever way the matter is approached it appears to me that the
present case can be and should be brought fairly within the wording of subsections (1) and (2) of
section 1 of the Act of 1981, subsection (3) being, as it seems to me, largely superfluous, and that
the justices in this case were wrong to dismiss the information. So the question: "Was the court
right to dismiss the information?" must be answered in the negative. As to question (b) which is:
"Was the failure of the prosecution to prove that the goods in question are or were stolen goods
fatal to a charge of attempted handling of stolen goods?" the answer must also be in the negative.
If it were so fatal it appears to me that it would rob section 1 of the Criminal Attempts Act 1981 of
all content and I am not prepared to attribute to Parliament either (a) a useless exercise or (b) an
exercise so bizarre that the guiltier you are the less likely you are to be convicted. The position
that, where there is a partial advance up the road to an intended crime the result will be a
conviction, but that arrival at the destination, apart from the impossibility envisaged in this case,
results in acquittal does not appear to me at all acceptable.
03/08/2015 Delivery | Westlaw India Page  8

Accordingly, I would allow this appeal. The submission having been made and succeeded the case
must, I think – but I am prepared to hear argument about it – go back to the justices with a
direction to convict.

FORBES J.

I agree. At one time in the course of argument I was attracted by the view that this section was
concerned solely with inchoate crime. Section 1(1) has two elements; an intent and the doing of
an act. There is no doubt that in this case the defendant had the intent to commit the offence of
handling. The section requires that the person charged should do an act which is more than merely
preparatory. Of course, an act which completes the offence must, in one sense, be more than
merely preparatory to its commission. In a section, however, which is devoted to attempts and
which in subsection (4) refers to an offence which "if it were completed" would be triable as an
indictable offence, it occurs to me that it might be forcibily argued that the words "more than
merely preparatory" were not intended to include the final act which would amount to the
commission of an offence if an offence were committed. However, if this were the proper
interpretation of section 1 it would have most remarkable effects, such as, for instance, the
example given by Parker L.J.

I would respectfully therefore accept his suggestion that in the circumstances he has outlined
there must have been a stage where an act *567  properly to be described as amounting to more
than merely preparatory was committed and therefore, despite my initial doubts, that this charge
was in this case properly proved.

1 Appeal allowed.
1 Case remitted to justices with direction to convict.
1 Costs of defendant and prosecutor out of central funds.
1 Legal aid taxation of defendant's costs.

15 May. The court granted a certificate under section 1(2) of the Administration of Justice Act
1960 that a point of law of general public importance was involved in the decision, namely:

"Does a person commit an offence under section 1 of the Criminal Attempts Act 1981
where if the facts were as that person believed them to be the full offence would
have been committed by him but where on the true facts the offence which that
person set out to commit was in law impossible e.g. because the goods handled and
believed to be stolen were not stolen or because the substance imported and believed
to be heroin was not heroin but harmless white powder or because a girl with whom
he had sexual intercourse was not under the age of consent although he believed her
to be under such age."

Leave to appeal refused. ([Reported by Y. H. TAN, Barrister-at-Law])

12 July. The Appeal Committee of the House of Lords (Lord Keith of Kinkel, Lord Bridge of Harwich
and Lord Brandon of Oakbrook) allowed a petition by the defendant for leave to appeal.

Representation

Solicitors: D. S. Gandy, Manchester; Ollier Wilner & Jones, Manchester.

The defendant appealed.

B. A. Hytner Q.C. and Peter Crichton-Gold for the defendant. 1. The words of section 1(4) of the
03/08/2015 Delivery | Westlaw India Page  9

Act of 1981 are not apt to embrace complete acts that are not offences that, when completed, are
triable on indictment, i.e. that do not amount to crimes. 2. By reason of the *568  wording of
section 1(1), and reading it against subsection (4), the words are not apt to cover choate offences:
they cover inchoate offences only. What was done in Reg. v. Brown (1889) 61 L.T. 594 would now
be a criminal offence.

Clear words are used in subsections (2) and (3) to cover Turner J.'s fifth category in Reg. v.
Donnelly [1970] N.Z.L.R. 980, 990 (see Reg. v. Smith (Roger) [1975] A.C. 476, 493, per Lord
Hailsham of St. Marylebone L.C.), but they are not apt to embrace his sixth category, for two
reasons: (i) handling stolen goods is indictable; handling non-stolen goods believed by the accused
to be stolen is not indictable; (ii) the error is not one of fact but one of law or of mixed law and
fact. The defendant's intention here was to buy a particular video recorder, not to buy a stolen
one. She would have preferred it if it had not been stolen. Her intention was to buy that recorder
at that cheap price. The amendment to the law made by the Act of 1981 was designed to catch
Turner J.'s fifth category. His first category remains no crime; his second, third and fourth
categories remain crimes. The question is as to his sixth category. The defendant's interpretation
of the Act would admittedly lead to an anomaly: if one stabs a bolster thinking it to be one's wife,
that is an attempt under the Act, but if one stabs one's wife's corpse that is not an attempt under
the Act, because it is not an offence to stab a corpse. The words of Lord Hailsham in Reg. v. Smith
(Roger) define the mischief; then one looks at the Act to see whether its words are apt to remedy
it. [Reference was made to Professor Brian Hogan, "The Criminal Attempts Act and Attempting the
Impossible" [1984] Crim.L.R. 584.] What section 1, on its true construction, is seeking to deal with
is the inchoate offence (i.e., Turner J.'s fifth category), not the completed offence. The
construction for which the prosecutor contends leads to results stigmatised as "asinine" by Lord
Reid in Reg. v. Smith (Roger), at p. 500; much clearer words would be required for such a
construction to succeed. [Reference was made to Reg. v. Shivpuri [1985] 2 W.L.R. 29.]

Christopher Rose Q.C. and N. H. Simmonds for the prosecutor. 1. The words of section 1(1) are
clear and wide, and they make conduct criminal as an attempt even though an essential ingredient
of the substantive offence is missing. This proposition is not diminished by subsections (2) and (3).
2. That interpretation (pace Lord Reid in Reg. v. Smith (Roger) [1975] A.C. 476, 500) is not
"asinine" but is consistent with two fundamental principles of the criminal law: (i) it is a truism
that there must be mens rea and actus reus; (ii) intention can play a dual role by not only
providing mens rea but also defining the character of the actus reus. 3. There are three specific
flaws in the defendant's argument: (i) this is not a codifying Act at all; it was intended to wipe the
slate clean; (ii) the defendant's submissions do not give appropriate weight to the clear wording of
subsection (1); (iii) those submissions wrongly assume that the ingredients of the actus reus for a
substantive offence are necessarily the same as those for an attempt.

On 1, see section 6. Section 6(1) abolishes common law attempts. Whatever difficulties do or do
not arise from Reg. v. Smith (Roger), section 6 wipes the slate clean. The Act is not codifying the
existing law. *569  So then one goes to section 1. Proposition 1 follows from the clear wording of
subsections (4) and (1). Subsection (1) makes an attempt criminal provided there is a sufficiently
proximate act. A sufficiently proximate act coupled with intention is enough to create the statutory
offence of attempt.

"Attempt" itself implies failure. Neither in language nor in logic does "make an attempt" mean
something that could be successful. There is no warrant in subsection (1) for importing into the
offence of attempt all or any of the ingredients of the substantive offence. If that is right,
subsections (2) and (3) are both in a sense surplusage, added ex abundanti cautela, being
"explanatory footnotes" to subsection (1), subsection (2) excluding the possible defence of
impossibility. The use of the phrase "the facts" is admittedly not the happiest way of describing a
situation arising by operation of law, but it can be properly construed to include factual situations
brought about by operation of law as well as more obvious facts. On 3, Professor Hogan's article
03/08/2015 Delivery | Westlaw India Page  10

does not mention subsection (1) from beginning to end.

On 3 (iii), the defendant's argument ignores the impact that intention can have on whether an act
is reus or not. [Reference was made to Reg. v. Shivpuri [1985] 2 W.L.R. 29, 35A-D.]

Hytner Q.C. in reply. There is a fundamental flaw in the prosecutor's analysis of section 1(1) in
that it confuses the guilty mind with the guilty act; but "actus reus" does not mean "guilty act"
(see per Lord Hailsham of St. Marylebone L.C. in Reg. v. Smith (Roger) [1975] A.C. 476, 491),
and the argument is against section 1 itself. The "act" must be one to which the section applies:
i.e., see subsection (4). The intent of the defendant cannot convert an act not within the
subsection into an act referred to in subsection (4).

Their Lordships took time for consideration.

9 May. LORD FRASER OF TULLYBELTON

My Lords, I have had the advantage of reading in draft the speeches of my noble and learned
friends, Lord Roskill and Lord Bridge of Harwich. I agree with them, and for the reasons given by
them I would allow the appeal and answer the certified question (as revised) in the way that Lord
Roskill proposes.

LORD EDMUND-DAVIES

My Lords, at the outset I address myself briefly to the peripheral question of whether on the
established facts this appellant could have been convicted of the full offence of handling stolen
goods. It is trite law that, as Darling J. said in Rex v. Sbarra (1918) 13 Cr.App.R. 118, 120: "The
circumstances in which a defendant receives goods may of themselves prove that the goods were
stolen, and ... that [the defendant] knew [that fact]." So in Rex v. Fuschillo [1940] 2 All E.R. 489,
a conviction for feloniously receiving a substantial quantity of sugar (a rationed commodity) was
upheld although, apart from the appellant's own statements, there was no evidence of the
ownership of the sugar or of the fact that it had been stolen.

But whether or not the circumstances of a particular case are such that inferences of theft and of
guilty knowledge can properly be drawn are questions of mixed fact and law in the former case
and of fact in the *570  latter. The conclusion arrived at by the magistrates in the present
instance is thus expressed in their stated case:

"We were of opinion that the mere fact that [the appellant] believed the goods to be
stolen was inconclusive in the absence of any evidence tending to show that the
goods were, in fact, worth more than the £110 which [she] paid for them."

It followed from this unassailable finding that the magistrates could not thereafter proceed to
convict the defendant of "handling stolen goods" contrary to section 22 of the Theft Act 1968. But
the prosecution could not have foretold that such a finding would be arrived at; for example, the
appellant might have given evidence and, both by what she said and by the manner in which she
said it, convinced the magistrates that she had more than merely suspected that the video
recorder had been stolen and that, when she had physically received it, she had not only believed
it to be stolen but also believed that it was in fact stolen. So some might think that the prosecution
should have presented its evidence on the full offence and then awaited the outcome; but it is a
matter of personal judgment upon which I express no opinion, and particularly as we know that on
the attempted handling charge the defence elected to call no evidence.

The sole question raised by this appeal is whether the magistrates were right in dismissing the
further charge of attempting to "dishonestly handle a video recorder, knowing or believing it to be
stolen (value £500), contrary to section 1(1) Criminal Attempts Act 1981." The short and simple
03/08/2015 Delivery | Westlaw India Page  11

facts and the wording of the section are fully dealt with in the speech prepared by my noble and
learned friend, Lord Roskill, and I shall not repeat them. I regard these facts as basically identical
with those considered by your Lordships' House in Reg. v. Smith (Roger) [1975] A.C. 476, both
cases involving consideration of the ingredients of a charge of attempted handling. It is true that in
Reg. v. Smith it was established that the goods had in fact been stolen at one time, whereas in the
present case there was no direct evidence that the goods had ever been stolen and the
prosecution rested its case simply upon what the defendant had told the police about her physical
acts and her state of mind at the material time. In Reg. v. Smith after being stolen the goods were
taken into lawful custody and thereupon ceased to be stolen: see the Act of 1968, section 24(3).
In the present case the magistrates were not satisfied that the recorder had ever been stolen. But,
despite that distinction (an immaterial one, as I hold), were the facts of Reg. v. Smith to recur
today, in my judgment they should lead to the same conclusion as do the facts of the present
case. In both cases the proper test is whether the defendant believed the goods to be stolen when
he performed "an act which is more than merely preparatory to the commission of the offence."

In the present case the Divisional Court held that the absence of evidence of theft was immaterial
to the charge of attempted handling. I think this was right, for either (a) the recorder had been
stolen, in which case the appellant was guilty of an attempt to receive it, since the fact that she
was also guilty of the full offence of handling leaves unaffected *571  her liability to conviction for
attempted handling (Webley v. Buxton [1977] Q.B. 481); or (b) the recorder had not been stolen,
in which case the appellant was, under the Act of 1981, guilty of attempted handling.

My Lords, in my judgment the Divisional Court came to the correct conclusion. If, on the contrary,
the submission advanced on behalf of the appellant is right, the legislature has substantially
missed its mark, for it was and is common knowledge that (to take as an example merely the facts
of the present case) Parliament intended by the Act of 1981 that a person who dishonestly handles
goods, mistakenly believing that they are stolen goods, should for the future be liable to conviction
for attempted handling.

Section 1(4) provides: "This section applies to any offence which, if it were completed, would be
triable in England and Wales as an indictable offence ..." I shall later indicate why, in my
judgment, the appellant clearly intended to handle stolen goods. She also took steps which were
"more than merely preparatory" to the offence of handling, for in her belief that the goods were
stolen she bought the recorder and received it into her custody. So she had the mens rea and, as
far as she could and thought (though mistakenly), she committed the actus reus of the full offence
of handling, though in reality a piece of the actus reus of handling "stolen goods" was missing.

But, since the recorder was not in reality stolen, are the facts nevertheless sufficient for the charge
of attempted handling? In developing the view that the proper answer is "No," Professor Hogan
has observed [1984] Crim.L.R. 584, 589-590:

"... [Mrs. Ryan] attempted to handle non-stolen goods believing that they were
stolen. That is not an offence known to law and cannot be an offence to which section
1 of the Act applies. To convict Mrs. Ryan would be to contravene the principle of
legality; a person, however evil his or her intentions may be, cannot be convicted
unless he or she does, or fails to do, something which constitutes the actus reus of a
defined crime. ... Mrs. Ryan got what she wanted for what she wanted was the video
recorder at a very low price, and in so doing did not handle stolen goods; if she is to
be properly convicted of an attempt the requirement for proof that the goods were
stolen still stands and cannot be satisfied by proof that Mrs. Ryan thought they were
stolen."

I have set out this extensive quotation because Professor Hogan's article was cited and adopted
03/08/2015 Delivery | Westlaw India Page  12

by the appellant's counsel. I desire to make the following brief comments upon it. (1) In my
judgment the quoted passage reveals an unsound approach to the new law of attempts introduced
by the Act of 1981, which by section 6(1) abolished for all purposes the common law relating to
the offence of attempt. It is not right to say that the appellant "attempted to handle non-stolen
goods." Her own words disclosed that what she attempted was to handle stolen goods, and to the
best of her belief she accomplished that very act, an act which undoubtedly constitutes "an offence
to which [section 1 of the Act] applies": section 1(1). (2) I naturally accept that what is intended
must be something which, if accomplished, would have brought about *572  the actus reus of a
defined crime, but at the same time I bear in mind that, in ascertaining what was intended,
section 1(3) requires that the facts are to be taken as if they had been as the actor believed them
to be. (3) Professor Hogan earlier said: "it can be accepted that Mrs. Ryan had mens rea." Then
what mens rea did she have? In my judgment clearly the mens rea of one intending to handle
stolen goods, for from its attractively low price she "supposed" that the recorder was stolen and
acting on that supposition she bought and received it. As Professor Glanville Williams neatly puts
it:

"If the defendant received a stolen article believing it to be clean you would not say
that he intended to receive a stolen article. So when he receives a clean article
believing it to be stolen, you should not say that he intended to receive a clean
article" (1985 N.L.J. 337).

My Lords, I hold that the appellant's case fails to have full and proper regard for the impact of
subsection (2) and (3) of section 1 of the Act. The section wins no prize for lucidity, but its effect
when considered in its entirety is that a person may now be guilty of attempting an offence even
though the facts are such that commission of the full offence is impossible, provided that, "if the
facts of the case had been as he believed them to be" (section 1(3)(b)), he would be regarded as
having made an attempt to commit that offence. In dealing with any attempt charge other than
those expressly excluded by the Act, the court has now to take the facts as the defendant believed
them to be. If, on those supposed facts (as contrasted with supposed law), he would be guilty of
an attempt, the Act makes him guilty of it. Taking the facts of the present case, before the Act a
piece of the actus reus would have been missing for both handling and attempted handling, viz.
the goods were not stolen; that is to say, the decision in Reg. v. Smith (Roger) [1975] A.C. 476
would have applied. Today, that piece is still missing and accordingly there can again be no
conviction for handling. Nevertheless, the appellant is not in the position of one who, in the words
of my noble and learned friend, Lord Bridge of Harwich (post p. 582G - H), "embarks on and
completes a course of conduct which is objectively innocent," nor is she to be convicted "solely on
the ground that the person mistakenly believes facts which, if true, would make that course of
conduct a complete crime." The legality of her conduct now falls to be judged by applying the Act,
her belief being vitally relevant not only to her intent but also to the quality in law of her
"objective" actions. Thus considered, her "more than merely preparatory" conduct was, in my
respectful judgment, certainly not "innocent." On the contrary, contaminated by and performed in
furtherance of her criminal objective, her conduct now constitutes the actus reus of the new
statutory offence of attempted handling.

My Lords, I believe that acceptance of the appellant's case would reduce the sonority of section
6(1) of the Act to a mere tinkle. In my judgment the legislature has succeeded in doing what in
the main it set out to do, namely, to effect a radical change in the law of attempts as it had been
declared in Reg. v. Smith. Professor Hogan, while agreeing *573  that such was the main purpose
of the Act, concludes [1984] Crim.L.R. 584, 591 that there has been "a spectacular failure of
legislative intent." Although the drafting of section 1 has been criticised, for the reasons already
stated I hold that there has been no such failure and I would therefore dismiss the appeal.
03/08/2015 Delivery | Westlaw India Page  13

But I must add a postscript. Throughout this speech I have resisted the almost overwhelming
temptation to illustrate some of my observations by conjuring up hypothetical facts. I have
refrained for complementary yet antithetical reasons. On the one hand, I do not consider it helpful
to contemplate imaginary situations which, if perchance they arose, it is unthinkable would ever
become the subject matter of a prosecution. On the other hand, as an appeal to your Lordships'
House from the Court of Appeal (Criminal Division) decision in Reg. v. Shivpuri [1985] 2 W.L.R. 29
has unfortunately yet to be heard, I have refrained from considering situations basically
indistinguishable from that giving rise to the impending appeal lest I appear to be prejudging its
proper outcome. It is no fault of mine if, despite such restraint, what I have perforce said has
made obvious the short answer I would unavoidably have given had it been deemed necessary to
deal in its entirety with the question here certified by the Divisional Court.

LORD KEITH OF KINKEL

My Lords, I have had the opportunity of reading in draft the speeches to be delivered by my noble
and learned friends, Lord Roskill and Lord Bridge of Harwich. I agree that, for the reasons they
give, the appeal should be allowed.

LORD ROSKILL

My Lords, this appeal necessitates your Lordships determining for the first time the true
construction of section 1 of the Criminal Attempts Act 1981. That this section and the other
relevant sections of the Act of 1981 were enacted in consequence of the decision of this House in
Reg. v. Smith (Roger) [1975] A.C. 476 is well known. That that decision aroused controversy and
that differing views have since been expressed by writers of distinction as to the extent to which
section 1 has altered the law as declared in Reg. v. Smith is also well known. It is, therefore,
important that the question of construction should be approached by reference to well known
principles, ignoring that which is irrelevant however interesting, but remembering that statutes
should be given what has become known as a purposive construction, that is to say that the courts
should where possible identify "the mischief" which existed before the passing of the statute and
then if more than one construction is possible, favour that which will eliminate "the mischief" so
identified.

The appeal arises from very simple facts out of which two charges faced the appellant when she
appeared before the justices for Greater Manchester on 6 June 1983. The first was of dishonestly
handling a video recorder knowing or believing it to be stolen, contrary to section 22 of the Theft
Act 1968. The second was of dishonestly attempting to handle that video recorder, contrary to
section 1(1) of the Act of 1981.

The facts are set out in the case which the justices stated for the opinion of the High Court. In the
late afternoon of Sunday, 6 April *574  1983 a police officer visited the appellant at her home at
her request in order to investigate a burglary which was alleged to have taken place there. In the
course of conversation the appellant admitted to the police officer that "she had bought the video
recorder for £110 from a person whom she declined to name." Later she said "I may as well be
honest, it was a stolen one I bought, I should not have 'phoned you." In answer to the statement
by the police officer that "You obviously knew it was stolen, didn't you?" she replied "Yes, I knew,
but it was damaged at the back ..." Subsequently she said in answer to the question why she had
bought it if she knew it to be stolen, she said "Well everyone's at it. I didn't think I'd get
discovered." It is right to mention that the police officer never saw the video recorder in question
and therefore could not give evidence either of its condition or of its value.

After the appellant had pleaded not guilty to both charges, the prosecution informed the justices
that they did not wish to proceed upon the first charge, that of dishonest handling. But the
prosecution invited the justices to convict the appellant on the second charge on the basis that
even though they could not prove that the video recorder had been stolen, the appellant could, on
the facts already set out, by reason of section 1(1) of the Act of 1981 be convicted of dishonestly
03/08/2015 Delivery | Westlaw India Page  14

attempting to handle the video recorder since she knew or believed it was stolen. The justices
found, as indeed was obvious from the evidence already summarised, that:

"the [appellant] had received into her possession a video cassette recorder and that
at the time of the receipt into her possession she was of the belief that it was stolen
goods."

If the prosecution's submission as to the effect of section 1(1) were correct, that last finding would
of course justify her conviction on the second charge. But the justices rejected the submission and
dismissed that charge. The prosecution appealed. On 4 April 1984 the Divisional Court (Parker L.J.
and Forbes J.) [1985] 2 W.L.R. 23 allowed the appeal and sent the case back to the justices with a
direction to convict. But they certified that the case gave rise to a point of law of general public
importance. As I shall point out in due course, the certificate was in a most unusual form. The
Divisional Court refused leave to appeal, but subsequently leave was given by this House.

My Lords, certain matters may be mentioned at the outset, if only to dispose of them. First I am, I
understand in common with all your Lordships, puzzled by the fact that the prosecution withdrew
the first charge. In my view there was ample evidence from which a court could properly infer that
the video recorder had been stolen and it is clearly found that the appellant at the time of its
receipt also so believed. It may well be that had the first charge not been withdrawn the justices
would have felt obliged to draw that very inference. Mr. Hytner Q.C. for the appellant frankly
accepted that there was at the lowest a prima facie case established of dishonest handling. It
follows from the justices' findings that if the prosecution had not, as I think wrongly, withdrawn
the first charge and the justices had thereafter felt obliged to draw that inference, a conviction on
the first charge might well have ensued and *575  the present problem would not then have
arisen. To that extent the appellant may count herself fortunate. It is ironic that the present
appeal arises, as did the appeal in Reg. v. Smith (Roger) [1975] A.C. 476, as a result of a
concession of, to say the least, doubtful correctness: see the speeches of my noble and learned
friend Lord Hailsham of St. Marylebone L.C., at p. 489, of Lord Reid, at p. 497, and of Viscount
Dilhorne, at p. 503.

Second, I have already referred to the unusual form of the certificate. I will now set it out in full:

"Does a person commit an offence under section 1 of the Criminal Attempts Act 1981
where if the facts were as that person believed them to be the full offence would
have been committed by him but where on the true facts the offence which that
person set out to commit was in law impossible e.g. because the goods handled and
believed to be stolen were not stolen or because the substance imported and believed
to be heroin was not heroin but harmless white powder or because a girl with whom
he had sexual intercourse was not under the age of consent although he believed her
to be under such age?"

My Lords, with all respect to the Divisional Court, this certificate was not, as it should have been,
specifically limited to the question of law arising on the particular facts of this case. Having stated
a question of law in general terms, the certificate seeks answers on the basis of no less than three
different sets of facts, two of them necessarily hypothetical. Your Lordships were told by counsel
that the form of the certificate was not suggested by either of them but was directed by the court.
If this be so, I can only say with the utmost respect that this form of certificate is undesirable. The
present certificate presupposes that the same answers should be given to the question of law in
each of the three cases postulated. My Lords for the reasons I shall give I am of the opinion that
on the facts of this particular case the appeal should succeed and that the conclusion reached by
03/08/2015 Delivery | Westlaw India Page  15

the Divisional Court cannot, with respect, be supported. Though in the course of giving my reasons
for that view I shall say something of the unlawful sexual intercourse example postulated, I must
not be taken as accepting that in the second case postulated, the supposed import of heroin, no
offence against section 1(1) would in such a case have been committed. Your Lordships were told
that this last question came before the Court of Appeal (Criminal Division) in Reg. v. Shivpuri
[1985] 2 W.L.R. 29 some six months after the present case was before the Divisional Court and
that leave to appeal to this House was then given by the former court. It would therefore be wrong
to engage in any discussion relevant only to that case.

I return to the present appeal. In Reg. v. Smith (Roger) [1975] A.C. 476 the goods in question
had been stolen. But the lorry carrying those goods was later intercepted and then passed under
the control of the police. Smith was one of a number of men waiting to receive the lorry and its
contents at a service area on the M1 motorway and the police, having intercepted the lorry and its
contents, allowed it to proceed on its way with a view to trapping the remainder of the gang
involved. The *576  concession already referred to having been made, it was thought that it was
not possible successfully to charge Smith with conspiracy to handle stolen goods since technically
the goods in question were no longer stolen goods by reason of section 24 of the Act of 1968. But
Smith was charged with and initially convicted of attempting to handle those stolen goods. The
question then arose whether it was possible to attempt to commit an offence if the offence itself
was incapable of being committed for reasons unknown to the accused. My noble and learned
friend, the Lord Chancellor, referred, at p. 493, to the six-fold classification of attempted
commission of offences enunciated by Turner J. in Reg. v. Donnelly [1970] N.Z.L.R. 980. My noble
and learned friend said he found that six-fold classification more satisfactory than the dual
classification which had previously been suggested in that case in the Court of Appeal (Criminal
Division). For present purposes I need only refer to his citation from that part of the judgment of
Turner J. which relates to the fifth and sixth examples of that classification:

"Fifth, he may find that what he is proposing to do is after all impossible - not
because of insufficiency of means, but because it is for some reason physically not
possible, whatever means be adopted. He who walks into a room intending to steal,
say a specific diamond ring, and finds that the ring is no longer there, but has been
removed by the owner to the bank, is thus prevented from committing the crime
which he intended, and which, but for the supervening physical impossibility imposed
by events, he would have committed. Sixth, he may without interruption efficiently
do every act which he set out to do, but may be saved from criminal liability by the
fact that what he has done, contrary to his own belief at the time, does not after all
amount in law to a crime."

The reasoning of my noble and learned friend in relation to the fifth class and his analysis of the
decided cases happily absolves me from the necessity of traversing the same ground once more.
At p. 495, he reached the conclusion:

"in general I regard the reasoning in Reg. v. M'Pherson (1857) Dears. & B. 197 and
Reg. v. Collins (1864) 9 Cox C.C. 497 as sound and in general I would consider that
'attempts' in Turner J.'s fifth class of case are not indictable in English law ..."

Lord Reid, at p. 498, emphatically rejected the argument that cases within the fifth class
constituted attempts. He said:

"It is said that if the accused does not know the true facts but erroneously believes
the facts to be such that his conduct would be an offence if the facts had been as he
03/08/2015 Delivery | Westlaw India Page  16

believes them to be, then he is guilty of an attempt to commit the offence. In the
case of a statutory offence that appears to me to be clearly wrong. The only possible
attempt would be to do what Parliament has forbidden. But Parliament has not
forbidden that which the accused did, i.e., handling goods which have ceased to be
stolen goods. The section defines both the actus reus and the mens rea required to
constitute the offence. Both must be proved. Here the mens rea was proved *577 
but there was no actus reus so the case is not within the scope of the section."

I need not quote similar passages from the speech of Viscount Dilhorne.

So far as the sixth class is concerned, the House unanimously held that in this class of case also no
offence was committed. The House adopted as correct the statement of law in Rex v. Percy Dalton
(London) Ltd. (1949) 33 Cr.App.R. 102, 110:

"Steps on the way to the commission of what would be a crime, if the acts were
completed, may amount to attempts to commit that crime, to which, unless
interrupted, they would have led; but steps on the way to the doing of something,
which is thereafter done, and which is no crime, cannot be regarded as attempts to
commit a crime."

Lord Reid in a well known passage, at p. 500, dealt with the matter thus:

"I would not, however, decide the matter entirely on logical argument. The lifeblood
of the law is not logic but common sense. So I would see where this theory takes us.
A man lies dead. His enemy comes along and thinks he is asleep, so he stabs the
corpse. The theory inevitably requires us to hold that the enemy has attempted to
murder the dead man. The law may sometimes be an ass but it cannot be so asinine
as that."

This then was the state of the law regarding cases falling within the fifth and sixth classes before
the enactment of the Act of 1981. Plainly, before that Act was passed, the appellant could not
have been convicted of attempting dishonestly to handle stolen goods because, had she attained
her objective, she could not in law have been guilty of dishonestly handling stolen goods, the
goods by concession not being stolen goods. Can she now be convicted of that offence?

The answer depends on to what extent the Act of 1981 has altered the law. For ease of reference I
will set out the relevant part of the long title and the relevant sections:

"An Act to amend the law of England and Wales as to attempts to commit offences ...

"1(1) 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. (2) A person may be guilty of attempting
to commit an offence to which this section applies even though the facts are such
that the commission of the offence is impossible. (3) In any case where – (a) apart
from this subsection a person's intention would not be regarded as having amounted
to an intent to commit an offence; but (b) if the facts of the case had been as he
believed them to be, his intention would be so regarded, then, for the purposes of
subsection (1) above, he shall be regarded as having had an intent to commit that
offence (4) This section applies to any offence which, if it were completed, would be
triable in England and Wales as an indictable offence, other than - ..."
03/08/2015 Delivery | Westlaw India Page  17

*578  The ensuing exceptions are irrelevant for present purposes.

"6(1) The offence of attempt at common law and any offence at common law of
procuring materials for crime are hereby abolished for all purposes not relating to
acts done before the commencement of this Act."

The principle which I have stated at the outset of this speech that where more than one
construction of a statute is possible that preferred should be the construction which eliminates the
"mischief" at which the statute was directed must not be carried to extremes. The facts of Reg. v.
Smith (Roger) [1975] A.C. 476 were most unusual. The problems to which the decision of this
House gave rise were many. It by no means follows that Parliament in its efforts to solve some at
least of those problems intended by this legislation to solve them all, or to ensure that if those
unusual facts were to be repeated in the future, a defendant in the same position as Smith should
be convicted when before this legislation he would have been entitled to acquittal. Loyalty to the
principle should not require the adoption of a construction which leads to manifestly absurd results
unless, of course, the draftsman's language compels that conclusion. I have already quoted Lord
Reid's observations about the possible asininity of the law in this field. For my part I decline to
construe a statute designed to amend "the law ... as to attempts" and thus to reform it so as to
make it sensible and simple in its future application as having that result. It must, however, be
said that the language used in the statute is such as to make the attainment of common sense and
the avoidance of asininity at one and the same time almost impossible of achievement.

My Lords, I begin my approach by recalling first that the statute is dealing only with inchoate
offences and secondly the warning uttered by my noble and learned friend the Lord Chancellor in
his speech in Reg. v. Smith, at p. 493, against over-analysis in this field of the criminal law. It is
important when construing the statute to look at its language and not only at the antecedent
classification to which I have already referred. The question to be asked is not whether the statute
remedies the problem in class 5 cases, or in class 6 cases, or in neither or in both. The question to
be asked is whether on a fair construction of the language used an accused person charged with
an attempt is in the particular circumstances envisaged by the statute liable to conviction where
before he would have been entitled to acquittal.

Mr. Hytner Q.C. for the appellant after drawing your Lordships' attention to the relevant part of the
long title invited your Lordships first to consider the language of subsections (1) and (4). Writing
the relevant words of subsection (4) into subsection (1) the latter then reads: FF

Mr. Hytner then argued that dishonest handling of goods which are not stolen is not an indictable
offence triable in England and Wales. *579  This video recorder was not by concession stolen.
Therefore on the facts found the appellant was not guilty of attempting to handle stolen goods,
whatever her belief. The statute he said does not create an offence where only mens rea exists
and there is no actus reus and it is still no offence to attempt to do that which if done is not in law
an offence.

This submission depends for its success solely upon the interpretation of section 1(1) and (4). If
the submission be correct the statute would not have achieved its aim, namely to reverse any part
of the decision in Reg. v. Smith (Roger) [1975] A.C. 476. The submission ignores subsections (2)
and (3).

Let me, therefore, turn to those two subsections. I will consider them in turn. Subsection (2) is
seemingly aimed at cases such as that of the pickpocket who puts his hand into an empty pocket.
In fact – I emphasise those words – he never could have achieved his ambition because the pocket
was empty. The commission of the full offence was never possible not because of any lack of
03/08/2015 Delivery | Westlaw India Page  18

intent (mens rea) or indeed lack of relevant physical action (actus reus) on the part of the
pickpocket. But because he was attempting to do that which was factually impossible it was said
that he must be acquitted. That happily is now a matter of past controversy. Subsection (2) has at
least removed the viability of what became known as the pickpocket's defence. It is against that
background that I turn to consider subsection (3).

I confess I have found great difficulty in determining the precise ambit of subsection (3). The
problems start with paragraph (a): "where - (a) apart from this subsection a person's intention
would not be regarded as having amounted to an intent to commit an offence; ..." Smith always
intended to commit an offence and took many steps preparatory to achieving his aim. It was not
insufficiency of intention which led to his acquittal: his acquittal was because that at which he
aimed would not, by the time he achieved his aim, have been in law an offence. But paragraph (b)
goes on to provide that "if the facts of the case had been as he believed them to be, his intention
would be so regarded." The subsection then provides that if the two conditions specified in (a) and
(b) are fulfilled "then, for the purposes of subsection (1) above, he shall be regarded as having
had an intent to commit that offence."

My Lords, in agreement with my noble and learned friend, Lord Bridge of Harwich, whose speech I
have had the advantage of reading in draft and with which I entirely agree, I think that
subsections (2) and (3) are complementary and must be considered together. In his speech my
noble and learned friend instances the case of a thief who steals a suitcase which is in fact full of
strips of newspaper but which he believes to contain £10,000 in cash. On the law as laid down in
Reg. v. Smith (Roger) [1975] A.C. 476, and indeed under the statute if subsections (1) and (4)
stood alone, the thief is only guilty of stealing the strips of newspaper. But subsection (3) enables
him to be charged with and convicted of attempting to steal £10,000 in cash. Like my noble and
learned friend, I do not propose to categorise the many examples discussed in Reg. v. Smith
(Roger) and consider which would now fall within subsections (2) or (3) or possibly within both.
But I would add a further example to that given by my noble and learned friend. I take the *580 
case of a defendant intending to kill another by stabbing him or by shooting him in bed only to find
after the knife has been plunged or the revolver fired that the assumed and intended victim was a
pillow. Such a defendant I am glad to think could now be successfully charged with and convicted
of attempted murder. Before, in my view, a judge, however reluctantly, would have been
compelled to direct his acquittal on such a charge. There is no doubt as to the guilty mind and the
guilty act of that defendant. But, in truth, his intention at the time was always incapable of
fulfilment. Since the enactment of subsection (3), the necessary intention is supplied by his guilty
but mistaken state of mind.

My Lords, it has been strenuously and ably argued for the respondent that these provisions involve
that a defendant is liable to conviction for an attempt even where his actions are innocent but he
erroneously believes facts which, if true, would make those actions criminal, and further, that he is
liable to such conviction whether or not in the event his intended course of action is completed.

The question is whether the language used by the draftsman in subsection (3) compels this result.
After long consideration of the difficulties to which the drafting gives rise, I have come to the
conclusion, in agreement with my noble and learned friend, Lord Bridge of Harwich, that it does
not. I respectfully agree with his view that if the action is innocent and the defendant does
everything he intends to do, subsection (3) does not compel the conclusion that erroneous belief in
the existence of facts which, if true, would have made his completed act a crime makes him guilty
of an attempt to commit that crime. I also think that likewise a defendant who is possessed of a
like erroneous belief and who, after doing innocent acts which are more than merely preparatory
to fulfilling his intention, for some reason subsequently fails to achieve that which he intends is not
liable to be convicted of an attempt to commit a crime.

If the contrary proposition be correct, some remarkable results follow. Let me take only one
example. A young gentleman is determined upon sexual intercourse with a young lady whom he
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erroneously believes to be under 16. She is in fact 18. He succeeds in his ambition. Before
subsection (3) was enacted he was clearly not guilty of any offence. Since the enactment of
subsection (3), his completed act is still itself not a completed offence. I find it impossible to
believe that it was intended by subsection (3) that he should be liable to be found guilty of
attempting to have unlawful sexual intercourse with a girl under 16 merely because of his
erroneous belief. I find it equally impossible to believe that in those circumstances Parliament
intended that he should be liable to conviction for an attempt to commit that offence in a case
where, for some reason, he failed at the last moment to achieve his ambition.

I do not stop to speculate what Lord Reid might have thought or, indeed, have said about
legislation which led to such a result.

In my view, much clearer and one might say much more drastic language would be required to
achieve that last result. Without presuming to redraft the subsection, I would at least have
expected to have found some such provision as: "If a person does an act which, if the facts were
*581  as that person believed them to be, would amount to an offence to which this section
applies, he shall be guilty of attempting to commit that offence." The language which the
draftsman has used seems to me to fall a long way short of anything so drastic and far reaching.

For the reasons I have given I summarise my conclusions thus: (1) Sections 1(1) and (4) are
designed to replace as a matter of statute law the former relevant common law. But they would
not of themselves eliminate any of the problems created by Reg. v. Smith (Roger) [1975] A.C.
476. Indeed they would preserve them. But it was plainly the intention of the statute to change
some at least of the law as declared in the speeches in that case.

(2) Subsection (2) certainly covers the pickpocket - empty pocket case. It may cover more but I
do not find it necessary to consider the precise scope of this subsection.

(3) Subsection (3) covers the case of a defendant possessed of a specific criminal intent which he
erroneously believes to be possible of achievement but which in fact is not possible of
achievement.

(4) Subsection (3) does not, however, make a defendant liable to conviction for an attempt to
commit an offence when, whatever his belief, on the true facts he could never have committed an
offence had he gone beyond his attempt so as to achieve fruition.

I would, therefore, allow the appeal and set aside the order of the Divisional Court. It follows that
the justices reached a correct conclusion. For the reasons already given, I do not think the
certificate is susceptible of an answer in the terms in which it is expressed. I would, therefore,
revise it and having done so answer it as follows:

"Where a person dishonestly handles goods in the belief that they are stolen goods
but those goods are not in fact stolen, that person is not liable to be convicted of
attempting dishonestly to handle stolen goods contrary to section 1 of the Criminal
Attempts Act 1981."

My Lords, this is a case of general importance and I suggest that the costs of both parties should
be paid out of central funds.

LORD BRIDGE OF HARWICH

My Lords, there is no more fertile field of legal controversy in the criminal law than that concerned
with attempting the impossible. There was a wealth of learned literature on the subject both
before and after the decision of your Lordships' House in Reg. v. Smith (Roger) [1975] A.C. 476
("Smith's case"). The further decision of the House in Director of Public Prosecutions v. Nock
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[1978] A.C. 979 and the Law Commission's discussion and recommendations on the subject,
accompanied by a draft Bill (Criminal Law: Attempt, and Impossibility in Relation to Attempt,
Conspiracy and Incitement (1980) (Law Commission No. 102)), kept the debate well fuelled. The
Criminal Attempts Act 1981, which your Lordships have now to construe for the first time, gave a
fresh impetus to the discussion in legal journals and text books. If one thing emerges clearly from
the literature on the subject, it is that there is no consensus as to what the law ought to be, let
alone as to what the law is.

*582

The facts giving rise to this appeal are recounted in the speech of my noble and learned friend
Lord Roskill and I need not repeat them. I say nothing as to the wisdom of the prosecution in
deciding to offer no evidence against the appellant on the substantive charge of handling stolen
goods or as to what might have been the outcome if they had proceeded on that charge. As
matters stand, it is fundamental to the appeal that we must assume that the video recorder which,
according to her own statement, the appellant had bought for £110 was not and never had been
stolen. Objectively considered, therefore, her purchase of the recorder was a perfectly proper
commercial transaction. What the respondent must establish to sustain the decision of the
Divisional Court is that, on the true construction of section 1 of the Act of 1981, her mistaken
belief that the recorder was stolen was, by itself, sufficient to convert the transaction into an
attempt to commit the offence of handling stolen goods.

The Act of 1981 was clearly intended to change much of the law as declared in Smith's case, but
the speeches in that case covered a wide range and, for my part, I see no ground for assuming
that the legislation was necessarily designed to reverse the decision in Smith's case on its own
facts. The acquittal of Roger Smith may have been part of the mischief identified by the Law
Commission as calling for a remedy. But the Act of 1981 is significantly differently drafted from the
Bill appended to the report, Law Commission No. 102, Appendix A, p. 85. As my noble and learned
friend Lord Roskill points out, three of their Lordships in Smith's case doubted the correctness of
the Crown's concession, which they were nevertheless obliged to accept, that at the time when the
goods in question were handled by Roger Smith they had been returned to lawful custody and had
therefore ceased to be stolen goods. Apart, however, from the attempt charge, my noble and
learned friend Lord Hailsham of St. Marylebone L.C. thought [1975] A.C. 476, 489, that if the
second count of conspiracy against Roger Smith had been left to the jury it "could hardly have
failed." I agree. If the unusual facts of Smith's case were to be repeated it seems to me that
justice could be done by prosecuting for conspiracy, and that there would be no need to charge
attempted handling in reliance on the Act of 1981.

I accordingly approach the question arising in the present appeal as one of pure construction with
no preconceived view of the legislative purpose intended. The relevant sections of the Act are set
out in the speech of my noble and learned friend Lord Roskill and again I need not repeat them. I
join with him in deprecating the form of the certified question, but I shall find it helpful in
explaining the view that I have formed to refer to hypothetical illustrative cases, without, I hope,
touching on any that might come before your Lordships for decision.

The question may be stated in abstract terms as follows. Does section 1 of the Act of 1981 create
a new offence of attempt where a person embarks on and completes a course of conduct which is
objectively innocent, solely on the ground that the person mistakenly believes facts which, if true,
would make that course of conduct a complete crime? If the question must be answered
affirmatively it *583  requires convictions in a number of surprising cases: the classic case, put by
Bramwell B. in Reg. v. Collins (1864) 9 Cox C.C. 497, of the man who takes away his own
umbrella from a stand, believing it not to be his own and with intent to steal it, the case of the
man who has consensual intercourse with a girl over 16 believing her to be under that age; the
case of the art dealer who sells a picture which he represents to be and which is in fact a genuine
Picasso, but which the dealer mistakenly believes to be a fake.
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The common feature of all these cases, including that under appeal is that the mind alone is guilty,
the act is innocent. I should find it surprising that Parliament, if intending to make this purely
subjective guilt criminally punishable, should have done so by anything less than the clearest
express language, and, in particular, should have done so in a section aimed specifically at
inchoate offences.

I agree with my noble and learned friend Lord Roskill that section 1(1) and (4) of the Act of 1981
provide a statutory substitute for the common law offence of attempt abolished by section 6. It
seems to me possible to find ample substance and content in section 1(2) and (3), reversing
aspects of the law of attempt which emerge from Smith's case, without straining them to make the
present appellant guilty of any offence. It is sufficient to say of subsection (2) that it is plainly
intended to reverse the law, originally declared in Reg. v. Collins, 9 Cox C.C. 497, mistakenly
thought to have been overruled by Reg. v. Brown (1889) 24 Q.B.D. 357, but reaffirmed in Smith's
case, that the pickpocket who puts his hand in an empty pocket commits no offence. Putting the
hand in the pocket is the guilty act, the intent to steal is the guilty mind, the offence is
appropriately dealt with as an attempt, and the impossibility of committing the full offence for
want of anything in the pocket to steal is declared by the subsection to be no obstacle to
conviction. The precise scope of subsection (3) is more difficult to delineate and I will not be so
rash as to attempt to identify to which of the numerous hypothetical cases discussed in Smith's
case it would apply; but I have no difficulty in giving an example of my own to which it certainly
would. A wages clerk collects £10,000 in cash from the bank every Friday in a suitcase. An
informer tells the police that a thief plans on a particular Friday to snatch the case and steal the
money. The police set a trap, but, in case the thief should escape, arrange that the bank will fill
the suitcase with torn strips of newspaper. The thief snatches the suitcase intending to throw it
away and take the money which he believes it contains. At common law his only offence is stealing
the torn pieces of newspaper. The effect of section 1(1) and (3) of the Act of 1981 is that he is
guilty of attempting to steal £10,000. Here again there is a guilty act "more than merely
preparatory to the commission of the offence" under subsection (1). Apart from subsection (3) his
intention would not be regarded as an intention to steal £10,000. By subsection (3) his erroneous
belief requires that his intention should be so regarded. It follows that the section enables him to
be convicted of attempting to steal £10,000.

It seems to me that subsections (2) and (3) are in a sense complementary to each other.
Subsection (2) covers the case of a person *584  acting in a criminal way with a general intent to
commit a crime in circumstances where no crime is possible. Subsection (3) covers the case of a
person acting in a criminal way with a specific intent to commit a particular crime which he
erroneously believes to be, but which is not in fact, possible. Given the criminal action, the
appropriate subsection allows the actor's guilty intention to be supplied by his subjective but
mistaken state of mind, notwithstanding that on the true facts that intention is incapable of
fulfilment. But if the action is throughout innocent and the actor has done everything he intended
to do, I can find nothing in either subsection which requires me to hold that his erroneous belief in
facts which, if true, would have made the action a crime makes him guilty of an attempt to commit
that crime.

I add by way of postscript that the construction I put on section 1 of the Act of 1981 would not, in
my view, lead to a conviction of Roger Smith of attempting to handle stolen goods on the basis of
the facts as the House was obliged to accept them in Smith's case. At the time when Roger Smith
took control of the erstwhile stolen goods and proceeded to assist in their removal and disposal,
the goods, on the basis of the concession reluctantly accepted by the House, had lost their
character as stolen goods. Roger Smith's earlier intentions, at the time when the goods were
stolen, were irrelevant. He had not at that time done any act more than merely preparatory to the
commission of an offence. He had conspired, but not attempted, to handle stolen goods. By the
time he handled the goods, since they were no longer to be regarded as stolen, however guilty his
mind, his act was as innocent as that of the appellant in the present case. However, as I have
03/08/2015 Delivery | Westlaw India Page  22

explained earlier, I find it unnecessary to construe the Act of 1981 as overriding the decision on
the facts in Smith's case.

For all these reasons and for the reasons given by my noble and learned friend, Lord Roskill, I
would allow the appeal and answer the certified question, as modified, in the terms he proposes.

Representation

Solicitors: Ollier, Wilner & Jones, Manchester; Chief Prosecuting Solicitor, Greater Manchester
Council.

Appeal allowed. Order of Divisional Court set aside save as to costs. Certified question revised and
answered as proposed by Lord Roskill. Costs of both parties out of central funds. (M. G. )

1 1.   Criminal Attempts Act 1981, s. 1: see post, p. 577F-H.

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