This document discusses criminal attempts and the law around liability for attempts. It addresses the key issues and debates around the current test for what constitutes an attempt under the Criminal Attempts Act 1981. Specifically, it examines the "more than merely preparatory" phrase and how courts have interpreted it inconsistently in different cases, leading to uncertainty. It also compares the old common law tests for an attempt that existed prior to the Act and discusses whether they were any clearer or more appropriate than the current statutory test. The document aims to analyze the problems and limitations with the current approach to criminal attempts in order to fully understand this area of law.

1. Attempts
MAH 2013-14
An inchoate offence

2. Starter:
Can you spot the problem?
Jane, an investigative journalist, is on a
train and goes to the toilet when she spots
graffiti asking girls aged 13 to get in touch
for sex, with a number.
Jane texts the number and begins to get
replies. Each is more explicit than the next.
She reports it to a police station, where the
charade is continued by a policeman,
posing as a 13 year old girl.
Eventually they arrange to meet, and David
is arrested at the seaside, with a black
marker pen in his pocket.
Has he committed an offence?

3. So how can we justify the conviction?
After all, there’s no substantive offence…
Take a look at these
reasons.
Which do you think is the best reason for
criminalising attempts and why?
All of you should be able to pick the best
reason and give a reason why
Most of you should be able to support
your argument with reference to one
case from your prior learning at AS or A2
Some of you should be able to explain
why one of the other two are inadequate
to justify imposing liability
It allows the police to do their job
more effectively
These are people who impose a sufficiently
clear risk of intentional harm if they were
allowed to complete their actions e.g. the
drug importer who is stopped at customs
There is a high moral culpability
associated with their acts, which would
have completed if they weren’t
interrupted or stopped. E.g. the person
who poisons drink, which is accidently
thrown away.

4. …So, what might an attempt look like?
What D did next… Attempted Crime
Trying the handle of a door Burglary
Knocking down a wall Escape from a prison
Walking up behind someone
and taking your hands out of
your pockets
Murder
Placing a ladder against a
house
Burglary
Taking out life insurance Making a false claim that
someone ‘died’
Dragging someone into a
shed
Rape
Tasks:
1 Decide whether or not D
should be liable for the offence.
2. Explain why!
In your explanation you should
aim to use relevant legal terms,
and make reference to the
reasons for imposing liability for
an attempt.
Challenge: On the basis of these actions, can you define
what D has to do to be liable for an
attempted crime (the AR)?

5. What does the law actually say?
Criminal Attempts Act 1981
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,
s.1(1) Criminal Attempts Act 1981
Actus Reus?
Mens Rea?
White 1910
1. Was his AR “more than
merely preparatory”?
2. Was his mens rea “intention”
to kill?
Words of Act
Can you work out
the limitations of
the current law?
…and why might it
be a problem?
D can only be liable if he has “...done
an act” s.1(1)
“This section applies to any offence
which, if it were completed, would
be triable in England and Wales as an
indictable offence” s.1(4)

6. So what do we actually mean by
“more than merely preparatory”
R v Jones 1990
1. D buys a shotgun, shortens its barrel and
loads it.
2. D leaves his house disguising himself by
wearing overall and a crash helmet.
3. D approaches V’s car as he his dropping
his daughter off at school
4. D opens the door and gets in
5. D says that he wants to “sort things out”
6. D takes out the shotgun from the bag
7. D points it at V and says “you’re not going
to like this”
When does the attempt start?
D argued that he would have also had to:
8. Cock the gun
9. Put his finger on the trigger
…to be liable
What did the Court of Appeal say?
 MTMP is the only guidance we have in the act
What’s the issue?
 It is a matter for the jury, but the judge
decides whether there is enough evidence for
a reasonable jury to find there was an attempt
What’s the problem?

7. Plenary:
Answer the Question
Discuss one reason why the Criminal Attempts Act
1981 is not fit for purpose.
Explain one reason why we are justified imposing
liability for an attempt, and link to an example.
Why was Mr White liable for the attempted murder
of his mother? Use the statutory tests.
According to the 1981 Act, What actus reus must D
be completing to be liable?
A
B
C
D

8. Starter:
What’s the phrase?
All of you should be
able to say what the
phrase is
Most of you should
be able to identify
what its importance
is
Some of you should
be able to link its
importance to a
case to explain how
the courts have
interpreted it.
P

9. So what has the current law got to say?
Guellfer
Use your homework to complete the facts of the case.
Use the plain ordinary meaning of
the words in the Act
“The words of the Act steer a
midway course… the crime begins
when the merely preparatory acts
have come to an end and D
Embarks on the crime proper. When
that is will depend on the facts in
any particular case.
What is Lord Lane
respecting?
What is he
implying about the
old tests which
existed before the
acts?
Can you spot a
problem or issue
with this test?

10. What happened next?
Well, the CA has been completely consistent in its interpretation of the law…
Jones 1990 Campbell 1991
...approved and followed this
approach. If we ignore the
emphasis on the facts of each
case, the principle seems to be
clear: an attempt is trying to do
something,
Facts:
On a warm summer’s day, D was seen with
an imitation gun, dressed in motorcycle
helmet and gloves pacing within a yard of a
post office door, over a period of around an
hour. The police arrested him and charged
him with attempted robbery.
Ratio:
Whilst approving the interpretation in Jones,
the CA held that there was no way a
reasonable jury could have decided on the
facts that he had ‘embarked on the crime
proper’ as he had yet to even enter the
post office.

11. Considering the implication:
Why do you think a lot of people criticise the Campbell case?
Does it reflect the aims of the law on attempts?

12. But what’s the problem?
Geddes 1996
This is one of the most controversial cases on
attempts, and the Law Commission hates it.
CA quashed his conviction on appeal. They
argued that D had yet to even approach a
student. The two questions that need to be
answered were:
 Had D moved from planning or
preparation to execution or
implementation?
 Had D done an act showing that he was
actually trying to commit the full offence
or had he got only as far as getting
ready, or putting himself in that position
or equipping himself to do so.?

13. Considering the issues
Geddes 1996
Was this what Parliament intended when
they passed the Criminal Attempts Act?
…their response in passing the s.63 of the Sexual
Offences Act 2003 would seem to say no.
For each of the following, explain why that is an
issue using the case…
It restricts attempts to only the very last
acts, and D is in fact carrying out the crime,
not attempting it.
It ignores the intentions of Parliament in
passing the Act.
It fails to take account of why attempts was
criminalised in the first place.
It ignores the plain ordinary meaning of the
Act, which Lord Lane was so keen to stress.

14. Applying Geddes and the Court of Appeal
Case Facts Does it meet the Guellfer/Geddes test?
Tosti
D drove up to a barn, got out, and hid
oxy-acetylene equipment in the
nearby hedge. He then went over and
started fiddling with the lock, when he
became aware he was being watched,
and ran off.
Charge: attempted burglary.
Bowles &
Bowles
DDs house was raided by the police
one morning. Amongst other things,
the police found a forged will in the
name of DD elderly next door
neighbour.
Charge: attempting make an unlawful
instrument
In only one of these was there a legal attempt – but can you spot which?

15. Sexual offences:
A slightly different approach
Dagnall 2003.
V was at a bus stop where the D was already
waiting. It became apparent to her that D
wished to have sex with her and, indeed, he
said expressly that he wanted to “fuck her”. She
became frightened and moved away from the
bus stop. She was followed by D, who
ultimately grabbed her and forced her against
a fence. She was screaming. She managed to
get back to a bus stop in another road and was
still screaming and being held by D at a point
when she became convinced that she was to
be raped and so indicated to D that he could
do what he wanted as long as he didn’t hurt
her.
Applying the Guellfer
test:
 Using that test, would D be
liable for attempted rape?
 Is the decision consistent with
the CA approach in other
attempts cases? Why? Why not?
 What might its approach here
reveal about the importance of
public opinion in determining
the meaning of MTMP?

16. Consolidation:
Turn to page 11 and complete the grid at the top of the page
All of you should be
able to identify whether
or not there has been
an attempt
Most of you should be
able to decide whether
or not you agree with
that outcome
Some of you will be
able to justify your
decision using a further
case to support your
argument.

17. So, what about the old law?
Was it any better?
As attempts was a
common law offence
before the Act, the courts
helpfully developed
three different tests
to determine whether D’s
Acts amounted to an
offence… and they picked
and chose between them,
depending on the
outcome they wanted.
This could create serious
uncertainty for the
defendant, as he could
not know with complete
accuracy which would be
followed.
Proximity
How close to the full offence were D’s actions?
Robinson 1915
Rubicon
Sometimes known as the last acts, or no going back
tests
Stonehouse 1976
Series of Acts
One in a series of Acts which, if not stopped would
lead to the commission of an offence.
Davey v Lee 1968
Boyle and Boyle 1986

18. Old or New?
Look back at
R v Jones.
In your blue books, explain at which point D would be liable for attempted murder under each of
the old tests, supporting it with reference to a relevant, well explained case.
Conclude on this by deciding which test (either old or new) you think is the most appropriate to
judge D’s acts by and why.

19. Plenary:
Write the paragraph out correctly in your blue books.
Can you beat the teacher?
Attempts are substantive offences, which were consolidated in the Criminal Attempts
Act 1983. This made D liable if he intended to commit a crime and did an act that was
preparatory. This phrase has caused lots of problems as it is not clear when D goes from
preparing to attempting. In the case of Smith the House of Lords said that he became
liable when he got into the lorry, as this is the point when the crime proper began to
happen. The prosecution had argued that to be liable for an attempt he would have
actually had to try and shoot the knife. This is similar to the tests which were in
operation before the Act, but the Court of Appeal said that they should use the words
of the Act, not previous statutory tests. This has been confirmed by the Court of Appeal
in Geddes, when they held that an attempt was when D went from execution and
implementation to planning and preparation, which meant that D was guilty when he
took his handbag in the toilets.
Can you beat the teacher?
Attempts are inchoate offences, which were consolidated in the Criminal Attempts Act
1981. This made D liable if he intended to commit a crime and did an act that was more
than merely preparatory. This phrase has caused lots of problems as it is not clear when
D goes from preparing to attempting. In the case of Jones the Court of Appeal said that
he became liable when he got into the Car, as this is the point when the crime proper
began to happen. The defence had argued that to be liable for an attempt he would
have actually had to try and shoot the gun. This is similar to the tests which were in
operation before the Act, but the Court of Appeal said that they should use the words
of the Act, not previous common law tests, and upheld his conviction. This has been
confirmed by the Court of Appeal in Geddes, when they held that an attempt was when
D went from planning and preparation to execution and implementation, which meant
that D was not liable when he was found with his rucksack and its contents in the
toilets.

20. He was only trying to ged his money
back!
School toilets can be dangerous
Stone me! He’s alive!
You really aren’t going to like this.
Will they have acted on it?
 He was (not) robbed!
Boy oh boy! They should never have gone
near the door.
 Not such sweet nectar from your son!
 Bus stops can be dangerous places to be
Starter:
One Mark: The name/facts
Two Marks: The decision or test
Three Marks: Statute or Common law?
Those absent last week, read through the catch up notes.

21. Attempting to do the impossible!
Thinking: Why should we criminialise those attempting to do the impossible? After all, they
haven’t actually done anything wrong!

22. How can an action be impossible?

23. Use your AS knowledge to complete the
development of the law at A2…
Anderton v Ryan 1985
Shivpuri 1986
Why did the HL make a mistake here?
Challenge: How could you argue that
the decision was consistent with the
new Act?
What did the HL use to overrule
itself?
Why do you think they were justified
convicting D?

26. Starter:
Welcome to A2 Dominoes!
You know the drill:
Lollipop awesomeness... Your brain, no help.
Sticker satisfactory... No(te) help, or a book.
Too easy? Why is the offence of
attempted rape not
covered by the dominoes?

27. Mens Rea of Attempts:
INTENTION
Using your own previous learning, complete
the information on direct and oblique intent.

28. Issue One:
Mens Rea for attempted murder
The full offence of
murder says that D can
be liable if either:
 He intends to kill
 He intends to commit
GBH
So, our issue is whether
and intent to commit
GBH should be enough
to convict D of
attempted murder.
Thinking:
Why might it be unfair to
convict D of attempted
murder if they intended
to commit GBH?
Whybrow

29. Next issue:
Conditional intent…
This is a problem for property offences, where D
breaks into a house, or picks up a bag intending to
take valuable items… but there’s nothing there.
Do they have the mens rea?
how precise does the intent have to be?
Husseyn Attorney General’s
Reference No 1&2 of 1979
It’s not an answer to the problem…

30. Next issue:
Crimes with more than one element of MR
Do they have to intend every element?
Court’s traditional
approach:
D must intend the central,
key element, but any
circumstances in which the
offence must take place, or
consequences he can just be
subjectively reckless.
Note: very recently the
CA has cast doubt on this
and seems to suggest
that D must intend all
elements of the offence
Which do you think
should be the approach?

31. Example One:
R v Khan
Which other attempts case could you link this to?

32. Example Two:
Attorney General’s Reference No 3 of 1992
Intent to cause damage
by fire
intending or being reckless
as to endangering life
Arson
endangering
life

33. Consolidation and Application:
Using everything you have learnt, apply the law to determine whether D is
liable or not for their attempted crime.
Attorney-General’s
Reference (No. 1 of
1992) 1993
D dragged a girl into a shed. He
lowered his trousers and sexually
assaulted her. However, he did not
have an erection.
What about this one?
Fred has just broken up with
his girlfriend and wants to kill
her. He believes in voodoo and
makes a model of his girlfriend
into which he sticks 10 pins.
Nothing happens.

34. How could we improve the law on
attempts?

35. Consultation Paper Final Report
Thinking: which reforms would you have supported and why?
No liability for omissions
Role of Judge and Jury
Geddes test
Summary Offences
Attempts as one offence

36. Section C:
Practice the Exam
Student Task:
In your blue books, answer
the section C at the back of
the hand outs.
We will look at the first one
together.
Remember that you have a
model C answer on
causation to help you with
the form, if not the
content
What can you tell me about how to answer these
questions?

38. Theanswers…
howwelldidyouscoreintechniqueandknowledge?

39. Plenary:
What’s wrong with each of the five statements?
1. Geddes set down the test for more than merely preparatory. It is when D
begins to embark on the crime proper.
2. Boyle and Boyle were found not guilty of the attempted burglary, as the
courts applied the proximity test to determine whether they had done
something which is more than merely preparatory.
3. Mohan states that an intent is the true wish to bring about the consequence,
and this was expanding on Wherebrow to say that attempted murder required
an intent to kill only.
4. Attempting to do the impossible has no limitations.
5. The Law Commission’s report carried forward two proposals, all the others
were discarded.
In your blue books, write out the corrected version,
aiming to be awesome in all ways!

40. Practising those application skills
The best way to check you know the law is to use the law.
Task:
Each of you has one problem question. You will
be applying the law, as you understand it, to the
problem to produce a perfect model of a mini-
problem question!
What do you remember about
how to answer them?

41. In considering whether Megan is liable for the attempted
kidnapping of Chris, is will be important to consider whether she
has done an Act which is more than merely preparatory, with intent
as required under s.1 Criminal Attempts Act 1981.
Following the precedent of JONES, In disguising herself and
equipping herself with the gun, she is clearly only committing a
preparatory action, which would not be enough for MTMP under
the Act. However, it can be argued that in stepping onto the
premises, she is beginning to ‘embark on the crime proper’ as laid
out by GUELLFER and, as she has clearly done more than D in
CAMPBELL, would have appeared to have moved from planning
and preparation to execution and implementation, which is the
guidance issued by the Court of Appeal in GEDDES.
In addition, by ‘deciding’ to kidnap Chris, she is clearly
demonstrating a true desire to bring about the consequence
[MOHAN], especially given her subsequent actions, and thus would
seem to have the intent necessary under the Act.
Having considered the issues, it appears that as she has done an
act which may be considered MTMP and has a clear intent, she
would be liable for the attempt.
MissHart’sAnswer

42. Now, swap and mark your classmate’s
response.
Identifies all of the relevant points of law in issue and
demonstrates a high level of ability to develop arguments or
apply points of law accurately and pertinently to a given
factual situation, and reach a cogent, logical and well-informed
conclusion.
Identifies most of the relevant points of law in issue and
demonstrates the ability to develop clear arguments or apply
points of law clearly to a given factual situation, and reach a
sensible and informed conclusion.
Identifies the main points of law in issue and demonstrates the
ability to develop arguments or apply points of law
mechanically to a given factual situation, and reach a conclusion.
Identifies some of the points of law in issue and demonstrates a
limited ability to produce arguments based on their material or
to apply points of law to a given factual situation but without a
clear focus or conclusion.
Identifies at least one of the points of law in issue., but their
approach may be uncritical and/or unselective.
The Mark Scheme:
5
4
3
2
1