Criminal Attempts

Defining the actus reus of attempts has remained a challenge in criminal law. The question posed is at what
stage an act intended to result in the commission of a crime go from being merely preparatory to an attempt.
Common law was unable to precisely define it. From various case laws, the approach preferred in common law
was ‘proximity test’. The problem with this approach was that it was vaguely narrow which resulted in
unjustified acquittals. Following the recommendations made by the Law Commission, attempting to commit an
offence was given a statutory footing through Criminal Attempts Act (CAA) 1981.

We will first discuss, through various case laws, how the offence of criminal attempts was dealt by common
law, and how different tests evolved. We will then discuss the 1981 Act, and how it has fallen short on
providing any clarification on the actus reus of an attempt.

Prior to the 1981 Act, the common law emphasis as on the proximity crime intended and the acts done in
advancement of the crime. In the case of Eagleton (1855), the defendant who was given a job to deliver bread
to poor, claimed money but the delivered underweight loaves. The defendant was charged and convicted of
obtaining money by false pretence. It was held that the defendant’s act was proximately connected to the last
act needed to commit the offence. Parke B gave a statement that led to creation of of proximity test: “Acts
remotely leading towards the commission of the offence are not to be considered as attempts to commit it; but
acts immediately connected with it are…”

While the defendant in Eagleton was rightly convicted, the test developed by this case led to unfair acquittals.
The courts required that the defendant must have committed the last act needed to commit an offence, in
order to qualify for a conviction. In Robinson (1915), a jeweller staged a fake burglary for a fraudulent
insurance claim. The police disbelieved the staged act, and also found the jewellery that was claimed by the
jeweller to have been stolen. The Court of Appeal held that defendant’s actions were not sufficiently proximate
to classify as an attempt. It was implied by Lord Reading that the jeweller’s acts would have constituted as an
attempt if the details of the burglary were communicated to the insurance company. What is not
understandable about the decision is why a false report to the police was differentiated from false details to
the insurance company. Similarly decision was given in the case of Comer v Bloomfield (1971) where false
report to the police on a stolen van was held to be insufficiently proximate to count as an attempt. Then in the
case DPP v Stonehouse (1978), Lord Diplock stated that the defendant must have ‘crossed the Rubicon and
burnt his boats’ to constitute as an attempt.

The above case laws were based on the ‘proximity’ or the ‘last act’ approach. There are some case laws that
were based on the approach in Stephen J.F. (1887) ‘A Digest of the Criminal Law’. According to this approach,
‘An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of
acts which would constitute its actual commission if it were not interrupted’. This approach was approved in
Hope v Brown (1954), and then later in Davey v Lee (1968) where defendants were apprehended after they
cut through a fence, and were on their way to a hut in a compound where copper wire was stored. It was held
that these acts indicated to the intention to steal copper. The problem with this approach was that it could also
have been constituted that the defendants were on their way to set the hut on fire. Just the mere presence of
copper is less than sufficient to constitute the the defendants intended to steal the copper.

Having discussed the common law approach towards criminal attempts, our focus will now be on CAA 1981.
S.1(1) says that the actus reus of attempt is met when the defendant takes more than merely preparatory steps
towards commission of a crime. The ‘more than mere preparatory’ is still a ‘proximity based test’. It’s up to the
judge to decide if the steps are capable of constituting as ‘more than mere preparatory’. Then this question of
fact is to be decided by the jury s.4(3). According to Professor Glanville Williams, the test given in s.1(1) was an
affirmation of common law. Hence, s.1(1) falls short on giving any guidance as to what constitutes as ‘mere
preparatory’ and ‘more than mere preparatory’. Hence it might be safe to assume that the actus reus of an
attempt is determined on case to case basis. In Gullefer (1990), Lord Lane said that “words of the Act [1981]
seek to steer a midway course” between the two approaches that the common law had adopted. Hence
according to Lord Lane, the actus reus of attempts is satisfied “when the merely preparatory acts come to an
end and the defendant embarks upon the crime proper. When that is will depend of course upon the facts in
any particular case”.
This test was applied in the case of Campbell (1991), where the defendant was attempted robbery of a Post
Office. Despite the fact that the defendant was arrested outside the Post Office and was armed with an
imitation fire arm and threatening note, his conviction was quashed by the Court of Appeal where Lord
Watkins said that ‘a number of acts remained undone’. Lord Watkins further said “if a person, in circumstances
such as this, has not even gained the place where he could be in a position to carry out the offence, it is
extremely unlikely that it could ever be said that he had performed an act which would properly be said to be
an attempt”. Hence this test is seemed to be narrower than the approach followed by the common law.
Contrastingly In Jones (1990), the act of the defendant of taking out a gun and pointing it at the victim was
sufficient to constitute as an attempt. This begs a question why the acts of the defendant in Campbell did not
constitute as an attempt, when all the necessary ingredients along an intention to rob were present.

To conclude, the legal position is not sufficiently clear when would an act be considered as ‘more than mere
preparatory’ . It has been left to the courts to construe if the acts were ‘more than mere preparatory’ as per
s.1(1). This makes the test imprecise and could lead to inconsistent verdicts. Hence, the actus reus of attempts
continues to remain elusive despite getting an statutory definition. Therefore, the only certain conclusion that
one may make is that the facts of the case would decide whether an act qualifies as an actus reus of attempt.