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The law of attempt analysed
Jim Shaw discusses the law of attempt from the doctrine’s origins to its current interpretation by the courts.
About the author
Jim Shaw LLB (Hons), MSc, PGCE is a CILEx tutor.
The interpretation of the term ‘attempt’ has often been the subject of fierce debate. It is worth spending some time examining its provisions in order to better understand how the current law has taken the form that it has; from where those provisions emanate; and how judicial application has shaped the meaning of this term.
The first recorded law of attempt was in the Court of Star Chamber during the 16th century. This particular court had tried to cover gaps in the existing common law, and in relation to attempt it is recorded that efforts to coin money, and even attempts at duelling, were held punishable. However, no overarching doctrine was developed, and after the abolition of this court (in the mid-17 th century) the remaining courts did not appear to develop a consistent approach to the issue. It was not until the late 18th century that the first record of an attempt is cited. In R v Scoffield , Cald. 397 (1784), the defendant was prosecuted for an attempt to burn down a house, and in R v Higgins, 102 Eng. Rep. 269, 275 (K.B. 1801), the court stated that ‘all such acts or attempts as tend to the prejudice of the community, are indictable’ . Thus, it can be seen that the modern law of attempt starts to emerge from this case: an attempt must nowadays be an act (not an omission) and also be indictable.
The issue concerning what is an ‘attempt’ has undergone various twists and turns in endeavouring to define what it is and is not. Indeed, in the ‘last-act ’ test suggested in R v Eagleton, 6 E. Cox, Crim. Cas. 559 (C.C.A) (London, 1855), it was determined that the act immediately before the commission of the full offence was sufficient to commit an offence of attempt. The facts of this case were that the defendant baker was contracted to supply bread to the poor. Before the first payment was made, it was discovered that the defendant was supplying loaves of bread that weighed less than the agreed amount. It was decided that acts leading remotely towards the commission of the offence were not to be considered as attempts to commit it, but acts connected with it immediately were to be considered as attempts.
The defendant was convicted of attempting to obtain monies by false pretences as he had committed the last act before the full offence was committed (ie, receiving the money), no money need to have actually been received. Some commentators have suggested that this approach is too strict, and that actions which are far more removed from the commission of the full offence should be considered as an attempt.
It was said that: ‘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.’* While it could be said that this quote is not entirely contrary to the ratio decided in Eagleton above, Stephen’s Digest did not help to determine the parameters within which an attempt could be said to have occurred. Indeed, if anything, it muddied the waters as it did not assist in defining the point where the ‘series of acts’ begins. The law was applied in Director of Public Prosecutions v Stonehouse 1978 AC 55; [1977] 2 All ER 909. Here, a former government minister in England insured his life for his wife’s benefit. He then faked his death by drowning. The defendant was convicted of attempting to obtain insurance money by deception because the acts were proximate enough to the commission of the full offence. In this case, Lord Diplock added: ‘In other words the offender must have crossed the Rubicon and burnt his boats’ (para 917).
It was not until the introduction of the Criminal Attempts Act (CAA) 1981, that statute law started the process of defining the offence more comprehensively. Section 1(1) of the CAA states that ‘if, with intent to commit an offence … 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’ .
Cases subsequent to the CAA show how the law - specifically the term ‘more than merely preparatory’ - has been interpreted in this regard. In R v Widdowson [1986] 82 Cr App Rep 314, the defendant gave the name and address of a neighbour to buy a van for himself on hire purchase. He was charged with attempting to obtain services by deception. It was held that giving false particulars was merely a preparatory act in order to obtain hire purchase. If the company subsequently agreed to the purchase, it still remained for the defendant to seek a hire purchase agreement with the business. The acts were too far removed, and not immediately connected with the offence being attempted.
In R v Campbell [1991] Crim LR 268, it was held that there was insufficient evidence for an attempt, where the defendant was arrested with an imitation firearm when he was one yard from a post office which he had intended to rob. The defendant claimed that he had changed his mind about the robbery, and the court noted that the defendant had not yet entered the building where the offence was to take place. Similarly, in R v Geddes [1996] Crim LR 894, an attempt was not made out where the defendant was found, without good reason, in a school’s toilets, with masking tape, rope and a large knife. In the circumstances, it was decided that he had merely got ready or put himself in a position or equipped himself to do so. In overturning the defendant’s conviction for attempting to falsely imprison a child, the Court of Appeal explained that the evidence needed to show that the defendant had tried to commit the offence. The three cases above show that the courts, in deciding whether the offence is made out, are prepared to move the evidential test towards the ‘last-act ’ end of the scale.
In contrast, in R v Boyle and Boyle (1987) 84 Cr App R 270, an attempt was made out when two defendants intended to commit burglary, and damaged a door in order to gain entry. Similarly, in Tosti and White [1997] Crim LR 746, two defendants went to premises with some oxygen-cutting equipment, which they concealed nearby. They were then seen to go to the premises and examine the padlock. The Court of Appeal applied the principle in Geddes above, and confirmed that in the present case, the defendants had tried to commit the offence.
A more recent case is that of Director of Public Prosecutions v Moore [2010] EWHC 1822 (Admin). The defendant drove along a private car park for 90 metres, and was stopped by the police a short distance from the turning onto a public road. His conviction for attempting to drink-drive (on a public road) was upheld. It was held that if he had not been stopped by the police, he would have committed the full offence.
It seems that Boyle and Boyle, Tosti and White and Moore above are less to do with the last-act philosophy, and more to do with the ‘series of acts’ (from which there is no retreat) end of the spectrum. It is also worth noting that the definition of ‘intent’ has been clarified by the Court of Appeal. In Attorney General’s Reference No 3 of 1992 (1994) 2 All ER 121, when considering an offence of aggravated criminal damage (by arson) contrary to Criminal Damage Act 1971 s1(2), it was decided that where a defendant intended that there be consequences (ie, to cause damage), they can be guilty of an attempt even when they are merely reckless about the circumstances (ie, the endangerment of life thereby). The CAA had not distinguished between such circumstances and consequences; therefore, judicial interpretation has provided certainty in this area.
In summary, the modern law of attempt is the culmination of a series of common law applications, and it can be said that applying the last-act test, as enunciated in Eagleton above, is a certain way of finding an attempt. It can also be seen that the modern interpretation of ‘attempt’ passes between Lord Diplock’s observation in Stonehouse above of a series of acts and the last-act test. Somewhere along this continuum, the offence is made out, dependent on individual cases.
It is suggested that the courts are more inclined to find ‘attempt’ where there is clear evidence of an ‘intent’ per se, thus leaning towards the ‘series of acts’ end of the scale. In any event, the effect of the CAA has been to move away from ‘remoteness’ and further towards ‘proximity’ to the commission of the full offence as being a necessary factor in determining whether there is sufficient for an offence of attempt in any given circumstance.
* See Stephen’s Digest of the Criminal Law article 50, 5th edition, 1894.