Elements of Attempts
s72(1)
• Having an intent to commit an offence
• Does or omits an act
• For the purpose of accomplishing his object
• Whether in the circumstances it was possible to commit the offence or not.
What three conditions (elements) must apply for an attempt conviction to succeed?
- Intent (mens rea) - intent to commit the substantive offence
- Act (actus reus) - that they did or omitted to do something to achieve that end
- Proximity - that their act or omission was sufficiently close / proximate to the full offence
Discuss proximity in relation to an attempt
What is required to meet the standard?
The accused must have done or omitted to do some act(s) that is/are sufficiently proximate (close) to the full offence.
Effectively, the accused must have started to commit the full offence and have gone beyond the phase of mere preparation - this is the “all but” rule.
R v Harpur
| Having All Regarded Prior Undone Relevant
The court may have regard to the conduct viewed cumulatively up to the point where the conduct in question stops.
The defendant’s conduct may be considered in its entirety. Considering how much remains to be done … is always relevant although not determinative.
The test for proximity
(Simester and Brookbanks)
Simester and Brookbanks suggest the following should be asked in determining the point at which an act of mere preparation may become an attempt:
- Has the offender done anything more than getting himself into a position from which he could embark on an actual attempt?
or - Has the offender actually commenced execution; that is to say, has he taken a step in the actual crime itself?
If the answer is yes, there has been an attempt. If no, preparation and not an offence
When is an act physically or factually impossible?
Provide examples from case law.
An act is physically or factually impossible if the act in question amounts to an offence, but the suspect is unable to commit it due to interruption, ineptitude or any other circumstances beyond their control.
Examples in case law:
R v Ring - offender had intent to steal property by putting his hand into pocket of victim, however the pocket was empty. Attempted theft.
Police v Jay - A man bought hedge clippings believing they were cannabis.
Police v Higgins - Cultivating plants falsely believing them to be cannabis. Attempted cultivation of cannabis.
Example of legally impossible act - R v Donnelly
Where stolen property has been returned to the owner or legal title to any such property has been acquired by an person, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen or dishonestly obtained.
Examples of circumstances not constituting a defence for an attempt
(3 examples)
When an act sufficiently proximate to the intended offence is completed, the accused has no defence that they:
- Were prevented by some outside agent from doing something that was necessary to comeplete the offence; e.g. interruption by Police
- Failed to complete the full offence due to ineptitude, inefficiency or insufficient means; e.g. Insufficient explosive to blow apart a safe.
- Were prevented from committing the offence because an intervening event made it physically impossible; e.g. removal of property before intended theft
Function of the Judge and Jury
The Judge must decide whether the defendant had left the preparation stage and was already trying to effect completion of the full offence.
The Jury must then decide whether the facts presented by the Crown have been proved beyond reasonable doubt and, if so, must next decide whether the defendant’s acts are close enough to the full offence.
Situations where prosecution unable to charge with attempt
(3 situations)
You are not able to charge someone with an attempt to commit a crime where:
- The criminality depends on recklessness or negligence, e.g. manslaughter
- An attempt to commit an offence is included within the definition of that offence, e.g. assault
- The offence is such that the act has to have been completed in order for the offence to exist at all, e.g. demanding with menaces; it is the demand accompanied by the menace that constitutes the offence
Discuss how several acts may be considered in relation to an attempt
Several acts together may constitute an attempt.
‘His actions need not be considered in isolation; sufficient evidence of his intent was available from the events leading up to that point.’
