Zoom-CRIMINAL Law-UoL

Review Chapter 14

Criminal Attempts

Activity 14.1
Read and takes notes on the discussion of the cases of Robinson and Comer v
Bloomfield in Wilson, Section 18.4.D

‘When does the attempt begin?

● Subjective:
i) D knows/aware =D's a/r- act(s) in an uninterrupted series; ii) starts earliest;

iii) American penal code s.5.01(1)(c)= D does or omit, what he believes, under
circumstance, that is substantial, in his plan, of crime== punish the planner

● Objective: The 'common law tests’

-Common law use UK & others
*act closes→ immediately→ after→ the last →act = ATTEMPT
Eg: 1st act: trespass; 2nd act: break window; 3rd act: enter house
-Substantive offence: burglary
-Attempt= 3rd act: enter house (closest to the substantive offence of burglary)
-a chain connect
-punish the doer

Do you agree with the court’s decision in these two cases that the defendants
had not committed an attempt? What was their reason for reaching this decision?

Robinson
-D faked a jewellery burglary
-tie himself, hides some jewellery
-to claim insurance

-police finds & convicts D attempt obtain money on false pretence

-CoA= allowed appeal
b/c: D's act not close immediately (attempt) to his substantive offence (obtain
money on false pretence)
-not guilty

Comer v
Bloomfield
-D faked van stolen
-called police
-called insurance fraud claim
-not guilty b/c these acts not close immediately (attempt) to his substantive offence
(fraud)

Activity 14.2
Read Wilson, Section 18.5.A.1 ‘The act interpreted’ and answer the following
questions.
a. Did D in Geddes go beyond mere preparation? The Court of Appeal said not
but many critics of the case thought he had. What do you think?
-preparing means to get things ready
-executing means to act out the preparation

-D executed b/c:
i) he trespassed private property and put himself at risk (it wasn't a practice drill)= so he
was serious about it
ii) hide in washroom= he knows exactly where the location is (from the preparing)

=don't know the degree of his conduct after the initial execution but aware it's more
execution than planning

b. Adam wants to kill his wife. Knowing that she has a potentially fatal heart
condition that is susceptible to fat and salt, he makes sure that every meal he
cooks for her is heavily laden with both fat and salt. Is Adam guilty of attempted
murder?
M/r
(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

A/R= act more than first preparation ←----------→ but not to actual result; somewhere in the
middle

-M/R= yes
-A/R= yes: deliberate salt/fat while cooking (action, active) beyond planning= it is
executing with the goal of causing harm to wife's health; increase harm to an existing
fatal heart condition; achieves harm to wife's surviving potential

-what is "fatal?"- heart attack fatal? artery clogging fatal? respiratory fatal? exhaustion
fatal?
-attempt to cause serious harm or GBH (OAPA 1861)

c. Did the defendant in Dagnall attempt to rape his victim? Why do you think he
was convicted when the defendant in Geddes was not? Are they both right?

Dagnall [2003] EWCA Crim 2441

-D approached V at a bus stop

-V walked away
-D followed and said wanted to have sex intercourse
-chased V; arm-locked V; pulls into another bus stop in the dark
-overpowered V
-V believed and honest convinced intends to rape and will rape soon
-until police car unplanned, drives by
-D steps away from scene thought police was a taxi
-convicted= attempted rape

CoA-
-D argued: i) didn't touch V in sex inappropriate way ii) only merely plan NOT execute
-CoA: reject b/c
i) at end V 100% convinced D was going to rape her
ii) evidence shows: D succeeded overcome V's resistance
iii) police arrival prevented the actual rape result
=execute, execute, execute= guilty

Geddes:
-there is no V
-but there is execution
-b/c there is no V= the argument of execution is rather weak

-both cases, Ds were discovered.

-if police didn't arrive, Dagnall's Victim would have been raped; if teacher and school
police didn't discover, then there could be potential of a student Victim or some harm to
staff; or even property damage to washroom=== too many doubts in Geddes from
speculation== less evidence of the act or the actual crime

-therefore Geddes not guilty; Dagnall is guilty

Activity 14.3
This accounts also for the decision in Geddes. The Court of Appeal concluded
that what D had done was to make preparation for what he had in mind to carry
out later. As you will probably agree, these decisions may be logical but they are
hardly practical. Just how far does the would-be child molester or robber have to
go before they commit the attempt?

i) it would be great to have a preventative measure for crimes before they reach
execution attempt
-make it like "duty of care" - limited groups are under this rule so not to punish everyone
and everything suspected
-good: more secure for society
-bad: less democracy, HR for limited groups (into complicated systems and complaints
and strikes)

ii) Geddes came close to execution but b/c w/o a V and true evidence to show him
"trying" -- it's not right to convict him under preparation work

iii) by limiting a certain group under the preventative protection= at least it is more
defined and concrete to limit how far, how long, how wide= a suspected D can go before
harm manifests into reality
eg:
Groups limited under this category:
-Children: vulnerable persons capable of harm (Geddes); kidnap, rape, abuse...etc
-Elder: same
-Terrorism

It's not easy.

Activity 14.4
Do you think the Criminal Attempts Act 1981 succeeded in bringing greater
precision to the definition of a criminal attempt?
-yes

Could you think of a better definition than that appearing in s.1?

The following definition of a criminal attempt might be appropriate and would at

least discourage judges from reaching decisions such as that in Geddes. To
constitute an attempt:
A must have done an act which was directly connected with its commission and which
was the last act the actor contemplated as necessary to commit the intended offence, or
was a more remote act which, without being an act of mere preparation, formed part of
a sequence of connected acts designed for the execution of the offence.

Simplified:

S1 Criminal Attempt Act 1981

i) an act connects directly to its commission
ii) last act that gives intended result

iii) execution
iv) act + series of previous acts together form execution

(i have none)
 Activity 14.5
Why do you think the Court of Appeal considered that there had been no
miscarriage of justice in Whybrow?
-misdirection in attempted murder:
-should be: D intended to SPECIFICALLY kill and not intended to kill or cause GBH

-CoA upheld still though misdirection b/c:

S1 Criminal Attempt Act 1981

i) an act connects directly to its commission- yes; making of wire; putting wire to soap

ii) last act that gives intended result- yes, wiring of electricity to soap

iii) execution- yes, there's a V; actively impose electrical creation onto V

iv) act + series of previous acts together- yes, started from purchase of equipment, to
invention, to wiring, to watch over V while V bathes == aim to kill with all purpose

*execution, not mere planning

*intent to specifically kill

Activity 14.6
Read Wilson, Section 18.5.B.2 ‘Attempts and recklessness as to circumstances’
and answer the following questions.
a. Since Khan was decided, the mens rea for rape has changed. It is not
necessary to show that D knew V was not consenting or did not care one way or
the other. D can be guilty of rape although he honestly believes V to be
consenting if that belief is not reasonable. What is the corresponding mens rea
for attempted rape? Is it still recklessness (D does not care one way or the other),
or is it enough that D has no reasonable grounds for believing V to consent?

-Not use reckless in rape anymore (ignore Khan);

-new rule: SOA 2003--- "D SPECIFICALLY intended to have sex with non-consenting
person" = meaning D has no reasonable grounds to believe V consent

b. Do you approve of the way that Khan was adopted in the A-G’s Reference (No
3 of 1992) case?
A-G’s Reference (No 3 of 1992)
-followed Khan under the

ATTEMPT offence
-use
i) D had specific intent and that
ii) D reckless to potential fire harm to lives

-didn't use as should = "D intended SPECIFICALLY to burn and harm lives = as in
O’Toole [1987] Crim LR 759

No, I think the cases are very similar, so should have used "D intended
SPECIFICALLY to burn and harm lives" under the "ATTEMPTED" principle

And save the 2 "reckless" limbs of the principle for only core offence of arson.

-It makes more sense because attempt means a "try-out" (but failed); being a try-out,
the part of: "intended SPECIFICALLY to do something (((but failed)))"--- explains the
attempted part better than lumping both under a blur of "reckless m/r."
-why the change? so confusing too

Activity 14.7
Read Wilson, Section 18.5.D ‘Impossibility’ and answer the following question.
Adam is a believer in voodoo. He believes that he can kill people by making a wax
model of them and sticking a pin in the model where the heart should be. He
makes such an image of Eve and sticks a pin in, intending to kill her. Is Adam
guilty of attempted murder? Should he be?

Attempt to murder requires:

● Objective
S1 Criminal Attempt Act 1981

i) an act connects directly to its commission- yes; make wax model; puts pins in model
ii) last act that gives intended result- yes - sticks pin

iii) execution- no
iv) act + series of previous acts together- yes

-No not attempted murder by objective test.

------------------

Subjective test:
i) D's a/r =act(s) in an uninterrupted sequence (to manifest into an actual
offence)- yes
ii) early - yes
Yes, attempted murder by subjective test: "Adam believes"
 ---------------------
● Impossible attempt and possible attempt:

Shivpuri [1987] AC 1

***Lord Bridge:
i) D intend to commit the offence- yes= makes image; sticks pin
ii) act beyond merely preparation of offence commission (execution)- no
iii) acts intended( SPECIFICALLY )for the offence commission- yes
No attempt

But

***Impossible offence b/c --- there is no core/substantive existing legal offence for
voodoo making or voodoo using; hence, there is also no attempted offence under
that non-existing core offence either

Am I ready to move on?

Are you ready to move on to the next chapter? You are if – without referring to
the
module guide or Wilson – you can answer the following questions.
1. State the two rationales for criminal attempts.
-an attempt -- try at a crime but failed/didn’t work out (whereas a successful result is an
“offence”)
-within the execution phase (pass initial stage of preparation)
2. State and explain the proximity approach to criminal attempts.
-textbook says it’s a measure that’s in between 2 stages of preparation and execution--
no definite spot
-proximity: beyond preparation & close to result
3. Explain why it has proved difficult to settle on a clear and effective rule
governing criminal attempts.
-as explained-- no clear boundaries- vary case by case
4. State the current test for deciding whether a person has performed an act
which is
‘more than merely preparatory to the commission of the offence’.
-objective test- UK-- testing the last act in the crime to see the proximity to the core
crime
-burglary: the last act is breaking a window (a/r)
5. State and explain the mens rea for criminal attempts.
m/r- intention to commit a crime and attempt succeed (100% m/r)
6. State and explain the mens rea for attempted murder.
-intention to kill or cause GBH (but failed); intent to attempt to kill or cause GBH---
Whybrow 1951-- attempted murder
7. Explain the legal position surrounding the mens rea for crimes, such as rape or
criminal damage, where proof of a circumstance is necessary in addition to a
consequence.
-m/r-- intention to attempt to cause==a/r not completed
-rape: circumstance; no consent
Dagnall, Khan
8. State and explain the rules governing ‘impossible attempts’.
-impossible to kill one who’s already dead