H418/01 - Criminal attempts

The act beyond mere preparation

An attempt is an offence in its own right: a defendant intends to commit an offence and has progressed far enough towards it, even though the full offence is not completed.

Section 1(1) of the Criminal Attempts Act 1981 requires an act that is more than merely preparatory to the commission of the offence, accompanied by the required intent. Thinking about a crime is not an act, and buying equipment or travelling towards a target need not cross the threshold. The prosecution must identify what the defendant actually did, not treat a bad plan alone as the actus reus.

The Act generally applies to offences triable on indictment in England and Wales, including either-way offences, subject to statutory exclusions. It also expressly covers low-value shoplifting. It is therefore wrong to say that every conceivable summary-only offence automatically has a section 1 attempt. The core examples here—murder, theft and criminal damage—allow the distinction to be taught without assuming a universal attempt offence.

R v Gullefer (1990) describes embarking on the crime proper rather than merely getting ready. The defendant disrupted a greyhound race hoping to obtain a refund of his stake; those acts had not yet begun the alleged theft. The rule does not demand the last possible act before completion. A defendant can still have steps remaining once the crime itself has begun.

Original contrast: Ivo buys a tool intending to steal a locked bicycle later. That supports a plan but is ordinarily preparation. If Ivo applies the tool to the lock at the bicycle with intent to steal it, the act has a much stronger connection to the theft itself. The threshold must be assessed against the elements of the particular offence.

Applying the threshold to facts

The phrase “more than merely preparatory” requires a legal and factual judgment, not a fixed number of steps or a distance from the scene.

In R v Geddes (1996), a defendant was found in a school lavatory with items including a knife, rope and tape, apparently preparing to restrain a pupil. His conviction for attempted false imprisonment was quashed because he had got ready but had not yet actually tried to imprison a child. The dangerous-looking equipment did not eliminate the need to show the act required for that attempted offence. The decision does not declare the conduct harmless or incapable of constituting a different offence.

Compare an original case in which Jules stands near a cash drawer carrying a bag and planning theft. The plan and proximity do not by themselves show Jules has started stealing. If Jules reaches into the opened drawer to take the money but an employee blocks the hand, that is much stronger evidence of beginning the appropriation itself. If Jules is actually returning change with permission, the same hand movement has a different meaning because the required criminal intent is absent.

The judge first decides whether there is sufficient evidence capable of amounting to an attempt to put the issue before the jury. Where there is, the jury decides whether the proved acts crossed the threshold. A weak case can therefore fail before the jury is invited to infer guilt. The prosecution must still prove both act and intent beyond reasonable doubt.

Analyse a borderline case by explaining each side. Preparatory equipment, travel and waiting support readiness; direct action on a person or property can support commencement. Identify what remains to be done without asserting that any remaining step prevents an attempt. Withdrawal after a completed attempt does not automatically erase liability; changing one’s mind while still merely preparing may mean this offence has not yet occurred.

Intention and the offence’s elements

The required intention must accompany the more than merely preparatory act. Earlier planning followed by an innocent act is insufficient, while intention can be inferred from conduct and other evidence.

For consequences that define the offence, attempt generally requires intention to bring about that consequence. R v Whybrow (1951) requires intention to kill for attempted murder. Intention merely to cause grievous bodily harm, although sufficient for completed murder if death results, is not sufficient for attempted murder. This is a useful connection between the completed offence and the preliminary offence: the mens rea need not be identical.

Do not say that recklessness can never appear in any attempt. Attorney-General’s Reference (No 3 of 1992) (1994) allowed attempted aggravated criminal damage where the defendant intended to damage property and was reckless whether life would be endangered by that damage. Intention was required for the damage; recklessness could satisfy the distinct life-endangerment aspect. This is a specific qualification, not permission to attempt a result merely by being reckless about it.

R v Pace and Rogers (2014) emphasises the statutory requirement of intent to commit the offence. In attempted handling of goods, merely suspecting they were stolen did not suffice where they were not stolen. This reinforces the need to analyse each element and the defendant’s belief, rather than assume that a lesser fault sufficient for a completed offence always suffices for its attempt. Rules about circumstance elements have generated difficulty; use the relevant authority for the offence instead of one universal slogan.