attempt

Question 1

definition

Answer 1

Criminal Procedure (Scotland) Act 1995 s294
paraphrased trying unsuccessfully to commit a crime

Question 2

at what point has an attempt happened?

Answer 2

HM Adv v Camerons 1911 SC (J) 110 (preparation to perpetration)
Facts: Husband and wife who pretended that the wife’s pearl necklace had been stolen to defraud their insurance company. They had notified the police and the insurance company, but hadn’t yet filed the paperwork.
Held: Jury held that this behaviour did amount to moving from preparing to commit to perpetrating it.
Significance: The accused must have moved from preparing to commit the crime to perpetrating it.

Question 3

difficulty drawing the line between preparation and perpetration

Answer 3

Guthrie v Friel 1992 SCCR 932
Facts: Accused charged with attempting to drive his car while over the blood alcohol limit. He was found asleep in the driver’s seat of the car at 3am with his seatbelt on. The engine was running and the lights were on.
Held: On appeal that the action of turning on the lights, fastening the seatbelt, engine on, etc. might show that the accused was preparing to drive, but not that he was attempting to drive it. Things may have been different if he had used the handbrake.

Question 4

test for attempt

Answer 4

HM Adv v Mackenzies 1913 SC (J) 107
Facts: As above, the book of chemical formulae.
Significance: The court thought that the applicable test to attempted liability is where the accused has committed an irrevocable act, ie one that cannot be undone. You can see the similarity with this test, and the way the court interpreted the move from preparing to attempting.
Irrevocable act test.

Question 5

example of an attempt

Answer 5

Samuel Tumbleson (1863) 4 Irvine 426
Facts: A man who had given a bowl of poisoned oatmeal to a woman along with the instruction that she should give the bowl of oatmeal to his wife.
Held: These acts of giving the oatmeal to a servant who would then give it to the wife constituted attempted murder, given that he had placed the outcome out of the accused’s control.
Significance: Irrevocable act test.

Question 6

not irrevocable act case

Answer 6

HM Adv v Baxter (1908) 5 Adam 609
Facts: Accused posted drugs to someone, with instructions as to how to administer them so as to cause an abortion to happen.
Held: This wasn’t attempted procuring of an abortion because there was time and space for the accused to go back on his actions, telling the recipient not to go through with her actions.

Question 7

mens rea

Answer 7

Cawthorne v HM Adv 1968 JC 32
Significance: The mens rea is the same as that required for the complete offence. Not necessarily intention to commit the offence.

Question 8

impossibility

Answer 8

Docherty v Brown 1996 SLT 325
Facts: The accused got hold of a number of pills that he thought to be class A drugs. He intended to supply them to others. He was mistaken though.
Held: It was relevant to charge him with attempting to commit the crime.
Significance: Impossibility is not a defence to inchoate liability.