Attempt Introduction This chapter is concerned with the offence of attempt.

. This offence is known as an inchoate offence because it is incomplete. No actual harm is done - none is required. The offence is committed when a person attempts unsuccessfully to commit an offence. There is no need specifically to charge the accused with the attempted offence.

 Thus, where the accused is charged with rape, the statement of the offence in the indictment will read rape, contrary to s.1 of the Sexual Offences Act 200 and on such indictment the jury may return a verdict of guilty of attempted rape. here, from the outset, the prosecution intends to prosecute the accused for attempted rape the indictment will read attempted rape, contrary to s. 1!1" of the #riminal Attempts Act 1$%1.

Attempt The offence of attempt is defined by s.1!1" of the #riminal Attempts Act 1$%1 which provides! "f, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence. #y s.$%&' the section applies to any offence tria(le in )ngland and ales as an indicta(le offence. *n $+ ,ecem(er -++. the /aw 0ommission pu(lished a report, 10onspiracy and 2ttempts1 %/aw 0om 3$4', which, in 5art 4, contains reform proposals concerning 1attempt1.

Actus reus The actus reus of attempt is the doing of an act which is more than merely preparatory to the commission of the su(stantive offence. The actus reus of attempt has to (e e6pressed in general terms as what will amount to the actus reus of attempted theft is quite different from that which will give rise to liability for attempted murder. "t is not enough that & has considered committing an offence, he or she must actually ha'e ta(en some steps towards committing it. The issue therefore (ecomes! how much must (e done to amount to an attempt and how is this to (e determined7

The role of judge and jury- Judges decide the evidence and jury decide the fact 2lthough s.)! " of the $.4$ 2ct provides that whether an act is more than merely preparatory is a *uestion for the +ury, the judge must decide whether what was done could amount to an attempt for the purposes of the 2ct. The +udge should only rule that there is a case to answer if he is satisfied that there is e'idence upon which a +ury could properly conclude that , performed an act which was more than merely preparatory to the commission of the offence allegedly attempted. If there is such e'idence, the issue must (e left to the +ury to decide as a *uestion of fact. "f not, the judge must direct the jury to acquit.

No evidence of Acts which are more than merely preparatory.

Evidence on which the Conclusive jury might find acts evidence of that are more than acts which are merely preparatory. more than merely preparatory.

Judge withdraws issue from jury.

Issue left to jury.

Issue left to jury but with strong hint from judge.

0omplete and incomplete attempts #efore looking at the case law it is useful to (ear in mind that there are (roadly two types of attempt. Complete attempt There are those attempts where the person has done all that he or she belie'es is necessary to achie'e the intended ob+ect (ut fails for some reason. These are often termed 1complete attempts1. 2n e6ample of a complete attempt is where the defendant has detonated a bomb, intending to (ill, but the bomb fails to explode, or the defendant, intending to kill, shoots at 8 (ut misses, as in the e6ample a(ove.

Incomplete attempt 2n 1incomplete attempt1, on the other hand, occurs where, although he has done an act that is more than merely preparatory, the defendant has not yet ta(en the last step, for e6ample where the defendant has planted a bomb and is apprehended as he is about to detonate it or he is apprehended just as he is a(out to shoot at his intended victim. Difficulty in incomplete attempt 9o far as complete attempts are concerned, the question of whether the defendant has done acts that are more than merely preparatory does not arise. 0learly in such cases the defendant has committed the actus reus of attempt. ,he problem arises in connection with incomplete attempts, i.e. where the defendant has not done the last act (efore the commission of the offence.

 -hat will amount to acts more than merely preparatory in these cases is problematic.

1. Important starting line .ullefer :$..+;- /ord /ane 0< stated that the crucial question was! it (egins when the merely preparatory acts come to an end and the defendant embar(s upon the crime proper.

2. Attempt theft/ .ullefer- D must embark upon crime proper-even try to make the competition void purposely to reclaim the money still not yet embark upon theft .ullefer the accused had placed money on a dog race. hen he realised that his dog would not win, he ran on to the race track in order to distract the dogs.

=is intention was to cause the race stewards to declare the race null and void and so entitle those who had (et on the race to claim (ack their stakes. =e was as unsuccessful in distracting the dogs as he had (een in picking the winner. "n fact the stewards did not declare the race void, (ut instead .ullefer was charged with and con'icted of attempted theft.

 The 0ourt of 2ppeal held that there was no e'idence on which a jury could find that he was attempting to steal> there was much more he needed to do. 0e was simply ma(ing preparations and not yet em(ark into crime proper.

0ommentary "t is interesting to consider the position if a no race had (een declared in ?ullefer. The re*uest for repayment of his 11% stake would clearly ha'e been his 2last act3. In fact he had not embark in this step yet He is only try to disturbing the dog but not yet claim the money [theft] "t seems that ?ullefer@s actual conduct in trying to stop the race was similar in many respects to the pre/ Act cases of 4obinson and #omer ' 5loomfield. "n each of these authorities there had (een a fabrication of e'ents by the defendant in order to set the scene for a fraudulent insurance claim at a future point. "n neither case was it considered that the attempted offence had (een committed where the

rele'ant claim form had yet to be completed or forwarded to the insurance company 6ost/Act case7 Similar principles underpinned the decision in 5owles and 5owles :-++&; where the defendant8s had denuded an old lady into preparing a testamentary disposition with them as (eneficiaries. 0owe'er, it had yet to be executed and gathered dust in a bedside drawer. The appellate court determined that their conduct was merely preparatory3 towards making a false instrument.

. Attempt murder-9ones %$..+)loading the gun and hide it only preparatory- but once pointed to then it is attempt even D had yet pull the trigger The appellant got into a car driven (y his e6-mistress1s new lover and pointed a loaded sawn/off shotgun at his face. The victim managed to gra( hold of the gun and throw it out of the window. 2lthough the safety catch of the gun was on and 9ones had yet to put his finger on the trigger and pull it, the 0ourt of 2ppeal upheld his conviction for attempted murder. 0learly his actions in o(taining the gun, in shortening it, in loading it, in putting on his disguise and in going to the school could only be regarded as preparatory acts.

 5ut once he had got into the car, ta(en out the loaded gun and pointed it at the 'ictim with the intention of (illing him, there was sufficient e'idence for the consideration of the jury on the charge of attempted murder. "t was a matter for the jury to decide whether they were sure that those acts were more than merely preparatory. "n our judgment, therefore, the judge was right to allow the case to go to the jury, and the appeal against conviction must (e dismissed.

). Attorney .eneral:s 4eference !;o. 1 of 1$$2" :$..-;- attempt rape- no need D attempt physical penetrate into vagina The 0ourt of 2ppeal held that, in the case of attempted rape, it is not necessary to pro'e that the defendant had gone as far as attempting physical penetration of the woman:s 'agina. "t is sufficient if there is e'idence of acts which a +ury could properly regard as more than merely preparatory to the commission of the offence.

 "n this case, defendant had dragged her off the path and (ehind a hedge where he forced her to the ground and lay on top of her, threatening to kill her if she did not stop screaming. , was on her (ack, her skirt pulled up and her (reasts e6posed. Aedical e6amination revealed that the complainant had (ruising around her private parts and the defendant had corresponding (ruising to his penis, though this had not necessarily (een caused (y the accused trying to penetrate the complainant 9ee also ,agnall :-++3; ) 02 0rim -&&$.

<. #ampbell :$..$;- attempt robbery- even !alking to!ard the destination !ith the intention still no attempt due to he had not gone to a place !hether he could carry out the offence 5olice had received a tip-off that a post office was to (e ro((ed. They kept the post office under surveillance and saw , (ehaving suspiciously. 0e e'entually wal(ed towards the entrance and put his hand in his poc(et where the police thought he had a heavy o(ject. ,hey arrested him one yard outside the post office and he was charged with attempted robbery. 0e was searched and found to be in possession of an imitation gun and a threatening note.

 0e admitted that the note was meant to frighten the person (ehind the counter at the post office (ut maintained that he had then decided not to ro( the post office - it was too dangerous. -at(ins =9 in the #ourt of Appeal said that it was unwise to lay down hard and fast rules. Aatters had to (e decided on a case-(y-case (asis. This is to reflect the fact that there is so much variation in the type of conduct required for the whole range of offences that may (e attempted and in this case a num(er of acts remained undone. 9o far as the series of acts that he had performed was concerned, travelling to and walking towards the post office door were merely preparatory.

 -at(ins =9 stated! number of acts remained undone and the series of acts which he had already performed namely, making his way from his home or other place where he commenced to ride his motor cycle on a journey to a place near a post office, dismounting from the cycle and wal(ing towards the post office door - were clearly acts which were, in the judgment of this court, indicative of mere preparation, even if he was still of a mind to rob the post office, of the commission that is of the offence of ro((ery. If a person, in circumstances such as this, has not e'en gained the place where he could (e in a position to carry out the offence, it is extremely unli(ely that it could ever (e said that he had performed an act which could (e properly said to (e an attempt. o "hat mean he haven#t enter into building yet

>. .eddes :$..B;- attempt false imprisonment- D had all stuff !ithout communicate !ith anyone$ but merely !aiting- no attempt The defendant was found trespassing in the lavatory (lock of a #righton school. =e was in possession of a large (nife and lengths of rope and mas(ing tape. There was evidence that he had intended to (idnap a child. =e was convicted of attempted false imprisonment. =e appealed against his conviction and his appeal was allowed. =is conduct had not gone beyond mere preparation. 2lthough he had entered the school, he had ne'er had any contact or communication with, nor had he confronted, any pupil at the school.

 0e hide in the toilet and found by the staff =e had not moved from the realm of preparation into the area of e6ecution or implementation. /ying in wait for a 'ictim is not sufficient to amount to an attempt to commit an offence. "t was said that the issue might be approached (y asking whether the defendant has done an act which shows that he has actually :tried: to commit the offence in question or whether he has only got ready or put himself in a position or e*uipped himself to do so.

#ontrast! .riffin- if start to tell the teacher to bring the child even !ithout action$ then it is attempt already .riffin The defendant, who was the mother of two children who were in care, was convicted of attempting to a(duct her own children and take them out of the Cnited Dingdom. 9he had (ought single ferry tickets to the Eepu(lic of "reland for herself and the two children and made preparations for travel, and falsely told the children8s teacher that she was ta(ing them to the dentist. =owever, at no point had she ta(en possession or control o'er the children nor had she embar(ed on the +ourney to the port. Nonetheless it was determined that the judge had ruled correctly that a jury could conclude that .riffin had started to commit the offence when she as(ed the teacher for the children.

?. ,osti and -hite- attempt burglary- being found in e%amining the padlock and run a!ay after realised being !atchedattempt ,he defendants were con'icted of attempted burglary. They had (een seen (y the owners of a farm, just (efore midnight, walking to the door of a (arn and examining the padloc(. -hen they realised that they were being watched they ran off. Some oxyacetylene e*uipment for brea(ing into premises was subse*uent is found near the (arn.

 "t has long (een esta(lished that once a more than merely preparatory act has (een performed then no defence of withdrawal will (e availa(le. ere the , acts sufficiently pro6imate to constitute attempted (urglary7

,heir =ordships on this occasion answered in the affirmati'e

%. 5e found out and run away before complete crime/ no defence ,aylor !1%<$"/ old case authority & abandoned his plan to set fire to some property when he realised he was (eing o(served. 0e had approached the property with a lighted match, and thus had completed an attempt. ;o defence of withdrawal was applica(le at a su(sequent stage.

/aw commission opinion, persuasive (ut not (inding- not so convincing approach The /aw 0ommission, in their 0onsultation 5aper $43 %-++F', dou(ted whether 5arliament had intended the offence of attempt to (e so narrowly construed and stated! 2ccording to the approach :in ?eddes;, to lie in wait for an intended victim to arrive is 1mere preparation1. This is so even though it may (e the last act , commits (efore perpetrating the actual attack and regardless of the fact that , may (e e6tremely close in (oth time and space to the point when the attack is to (e made. The corollary, of course, is that to pursue or stalk an intended victim or even perhaps to raise a knife against them, with a view to committing the intended offence as soon as the opportunity arises, are

also nothing more than illustrations of 1mere preparation1 %para $&.$B' .

2ctivity $3.$ The /aw 0ommission in their Eeport, 10onspiracy and 2ttempts1, %/aw 0om No. 3$4' %-++.' give the following e6ample. 1,, intending to kill, creeps up (ehind 8 and withdraws his hands from his pockets in order %as , later admits' to strangle 8. ,1s hands are seiGed (y a police officer just (efore , strikes, there(y thwarting ,1s plan to commit murder.1 According to the approach ta(en in .eddes would this amount to attempted murder7

 If the .eddes approach is followed & is not guilty of an attempt. &espite the fact that & acts with the mens rea for murder he has not actually tried to strangle @. 0owe'er, distinguish point is the in .eddes, the & had not attempt to communicate to any students yet. In present fact, & did in the position to conduct the crime !#ampbell" So, he may submitted as attempt

$. Omissions/ cannot 2lthough there is no +udicial decision on the matter, there is general agreement among commentators that, as the law currently stands, an attempt cannot be committed by omission. The section requires that & :does an act:. 2n H2ct@ (ut not omission The =aw #ommission has recommended a change in the law which would apply only to attempted murder. hilst noting that there is a 1conceptual difficulty associated with identifying... an omission which is more than merely preparatory1 it recommends that! the 0riminal 2ttempts 2ct $.4$ (e amended so that & may be con'icted of attempted murder if %with intent to (ill @' & failed to discharge his or her legal duty to 8 %where that omission

unchecked, could have resulted in death' %/aw 0om No. 3$4' %-++.' %paras 4.$&F-4.$I$'. Summary The a(ove cases show that there are two lines of approach to the question of whether acts are merely preparatory. The (roader approach e6emplified (y <ones and Tosti, recognises that some preparatory acts short of actually trying to commit the offence may (e sufficiently close to the commission of the full offence to (e regarded as more than merely preparatory. 2 more restrictive approach, adopted (y the 0ourt of 2ppeal in 0amp(ell and ?eddes, limits lia(ility to situations where , has actually tried, (ut failed, to commit the offence.

Aens rea of attempt Section 1!1" of the 0riminal 2ttempts 2ct $.4$ provides that the defendant must have acted with :intent to commit an offence:. "ntent %opposed to reckless' is important "f a terrorist who is torturing a prisoner shoots him in the kneecaps, he clearly intends to cause him serious (odily harm and if the victim dies there is nothing wrong in holding that the terrorist should (e guilty of murder. =owever, if the 'ictim does not die, it might sound odd to hold the terrorist liable for attempting to murder him (ecause this would imply that the terrorist was trying to (ill the 'ictim, which he was not. "n other words if you say that someone is attempting to (ring a(out a result you are saying that he intends to achie'e that result.

The meaning of intent 1. , must intend the act or conduct element of the su(stantive offence.rape & must intend the act which forms part of the actus reus - i.e. for attempted rape he must intend penile BpenisC penetration.

-. , must intend the conse*uences element of the su(stantive offence.AurderJattempt arson -hybrow-attempt murderattempt to &'( no enough$ intent to kill 2lthough an intent to do ?#= will suffice for murder, only an intention to (ill will suffice for attempted murder. Dou do not attempt to murder someone unless you intend to (ill them. -hybow, a case where the & had wired up the bath in an attempt to electrocute his wife. 2the intent becomes the principal ingredient of the crime3. =ence the prosecution had to esta(lish in hy(row that the defendant had the intention to

(ill his wifeE it was not enough merely to show that he intended to cause her grie'ous bodily harm.

O8,oole- attempt arson need intention although arson only need reckless "n O:,oole :$.4F; it was held that although recklessness as to causing damage will suffice for the offence of arson, the attempted offence re*uires proof that & intended to cause damage. Therefore, for attempt any consequences in the definition of the full offence must be intended.

Aillard and @ernon- criminal damage- need intention 0riminal damage the defendant must intend to damage or destroy property (elonging to another> it would not be sufficient that he was rec(less as to the ownership of the property.

Aohan %$.FB'- intent to cause ?#= (ut not recklessly to cause ?#= , was driving his car and responded to a police officer1s signal to stop. , slowed down (ut then accelerated towards the police officer, who moved out of the way, and , drove off. , was charged with attempting to cause (odily harm (y wanton driving at a police consta(le. The jury was directed that the prosecution had to prove that , realised that such wanton driving would (e likely to cause (odily harm. The 0ourt of 2ppeal quashed ,1s conviction, ruling that a conviction for an attempt to cause (odily harm (y dangerous driving re*uires proof that & intended to cause harm by dangerous dri'ing. It was not sufficient to pro'e that & did not care whether he hit the police officer when attempting to escape, nor that he (new it was li(ely.

"ntent test/ -oollin applied There is authority that the -oollin :$...; approach to intention applies to the offence of attempt / see & B200)C.

#onditional intent for attempt theft pro ided D intent to steal some!all the content e en there is nothing "n (usseyn %$.FF' , opened the door of a parked van containing a hold-all full of su(-aqua equipment and was charged with attempted theft of the equipment. The trial judge directed the jury that , could (e convicted of attempted theft if he had (een a(out to e6amine the hold-all with the intention of stealing the contents if they were valua(le. This was held to (e a misdirection, however, on the (asis that 1it cannot (e said that one who has it in mind to steal only if what he finds is worth stealing has a present intention to steal1.

 "n Attorney .eneral:s 4eference !;os 1 and 2 of 1$?$" :$.4+; the 0ourt of 2ppeal overcame the pro(lem caused (y =usseyn, (y means of a procedural solution. "t held that if & opens a bag with the intention of stealing something only if it is something , finds valua(le, & can be con'icted of attempted theft e'en if he finds nothing worth stealing pro'ided the indictment states that & intended to steal Fsome or all of the contentsF.

3. & must (now of the existence of the circumstances elements of the substanti'e offence, or if a lesser form of fault is re*uired for the substanti'e offence, & must (now there is a ris( that the rele'ant circumstances exist. D must have the intend to substantive offence )core element* but lo!er +, in other element of +, )circumstances to the offence* "f the su(stantive offence requires proof that & (new that certain defined circumstances existed at the time he performed the relevant conduct then so too does an attempt to commit that offence. 0owe'er, if rec(lessness as to the circumstances in the actus reus will suffice for the full offence then it will also (e sufficient for the attempt

Ghan :$..+;- attempt rape- intent to have se%ual intercourse but only reckless to the consent "n this case, the defendant was charged with attempted rape. 2t that time rape required proof that a man had se6ual intercourse with a woman who did not consent and that the man knew that the woman did not consent or was reckless as to whether she consented or not - i.e. 1could not care less whether she consented or not1. The judge directed the jury that the mens rea for attempted rape paralleled thatof the su(stantive offence. Therefore, the prosecution had to prove that the man tried unsuccessfully to have se6ual intercourse either knowing that the woman was not consenting or (eing reckless as to whether she consented. The defendant was convicted and appealed.

 =e appealed against his conviction arguing that although recklessness as to whether the woman consented sufficed for the full offence, attempted rape required proof that the defendant intended to have se6ual intercourse with a woman who did not consent. "t therefore followed, he argued, that it must (e proved that he knew the woman was not consenting. The 0ourt of 2ppeal, dismissing the appeal, held that the mens rea is precisely the same in rape and in attempted rape, namely an intention to ha'e intercourse plus a (nowledge of or rec(lessness as to the woman:s absence of consent. ,he attempt relates to the failure to perform the physical acti'ity. Thus in Dhan the prosecution had to show an intention to have se6ual intercourse and the remaining state of mind required for the offence of rape.

 Attorney .eneral:s 4eference !;o. of 1$$2"/ attempted aggra ated arson [criminal damage]- other "# is enough for attempt as long as far as there is intent the core element of the offence )i.e criminal damage* So$ from the rape above$ as long as intent to penile penetrate )core element*$ reckless to consent is enough The respondents had thrown petrol (om(s at a car in which there some passengers. The (om(s missed the car. They were charged with attempted aggra'ated arson being rec(less as to whether life would (e endangered %see 0hapter $F! 10riminal damage1'. a conviction for the completed offence the prosecution has to prove that the defendant intentionally or recklessly damaged or destroyed property %this property may (elong either to another or to the defendant' with intent to endanger life or (eing

reckless as to whether life was there(y endangered The trial judge held that (efore a defendant could (e convicted of attempting to commit the offence it had to (e proved that he intended that the lives of others should be endangered by the damage he intended- recklessness !as not sufficient. On a reference the #ourt of Appeal held that rec(lessness would suffice. 2ccording to 9chiemann < in the 0ourt of 2ppeal! hat was missing in Dhan was the act of se6ual intercourse, without which the offence was not complete. -hat was missing in the present case was damage to the first/named property, without which the offence was not complete.

 "n order to succeed in a prosecution for attempt, it must (e shown that the defendant intended to achie'e that which was missing from the full offence. "n attempted aggravated damage %or arson' it is the damage or destruction which is missing> it has, therefore, to (e proved that the defendant intended to damage or destroy property. 2s far as the mens rea of the other elements of the actus re us was concerned or any ulterior intent, it sufficed that the prosecution could establish the mens rea re*uired of the completed offence. Thus, in relation to the absence of consent m attempted rape it sufficed than that the prosecution could prove the accused recklessJnegligence to the lack of consent. "n aggra'ated damage, (eyond the need, to prove an intention to damage property, it was sufficient

that the prosecution could prow that the defendants intended or were rec(less as to endangering life.

 "t would seem to (e the position, therefore, that if & does an act intending to endanger life, (ut not intending in the process to damage property, he cannot be con'icted of attempted aggra'ated damage in endangering life, but that if he intends to damage property he can be con'icted e'en though he rec(less in endanger life.

"nto6ication to the specific intent of attempt "t will (e recalled that earlier we said that attempted offences were crimes of specific intent and that, therefore, the defence of intoxication was a rele'ant defence if it negati'ed the specific intent. Hxcept for the attempt rape and attempted aggra'ated arson, which include the rec(less to the attempt offence which will be regarded as basic intent crime

.rgument/ )not so important* =owever if , intends to have intercourse with 8 (ut he (elieves that she is not consenting, whereas, in fact, she is. "f he has intercourse in these circumstances, he cannot be guilty of rape since there is no actual lac( of consent. 0owe'er, by apply principle abo'e, he would commit attempted rape. -hat is missing is not a physical act of intercourse, but the state of mind of the 'ictim. In the case of A. !no. of 1$$2", it is held that attempt crime is what missing from the full offence ,oes this mean that the accused must intend that the woman is not consenting7 ould recklessness as to her lack of consent now (e insufficient7

 =owever, counter-argument to this! this is rare situation, even it is happen, the , in fact did not reasona(ly (elieve to the consent "t may (e reasona(ly, (ut , did not (elieve in the first place Then he can (e convicted rape as well

0a! Commission/ 1ot so important The /aw 0ommission %/aw 0om No. 3$4' %-++.' rejected this 1simplistic approach1 to the decision on the (asis that! This approach, if e6tended to attempts to commit no-fault offences, would require no fault on the part of , as to a required circumstance element and, in the a(sence of any consequence element, no fault at all other than the intention to commit the relevant conduct %para 4.$$4'. Thus they conclude! here , need only (e su(jectively reckless as to the e6istence of a circumstance to (e lia(le for the su(stantive offence, su(jective recklessness as to that circumstance should suffice for attempt.

here a lesser form of fault or no fault at all is required in relation to a circumstance to (e lia(le for the su(stantive offence, su(jective recklessness as to that circumstance should nevertheless (e required for attempt. here a higher form of fault is required in relation to a circumstance to (e lia(le for the su(stantive offence %for e6ample, knowledge of the circumstance', the same fault should (e required for attempt.

Attempting the impossible 9ection 1!2" of the 0riminal 2ttempts 2ct $.4$ provides that a person may be guilty of attempt even though the facts are such that the commission of the offence is impossible. Therefore, if you try to (ill someone with a harmless substance which you mista(enly belie'e is a lethal poison, you are guilty of attempted murder.

=ypothetical situation 2%ample 3- possible to attempt if being caught before completing 2 is caught trying to open the night safe at a (ank with a can opener. "t is quite clear that the (ank@s money is safe from him. *n the other hand, if he were to succeed he would commit the offence of theft. ,his is not so much a case of attempting the impossible, as incompetently attempting the possible. 5rovided that the jury think that he is (eyond merely preparing to commit the offence, he can (e convicted.

2%ample 4- possible to attempt in fact there is impossible to do so # is a pickpocket. 0e snea(s up behind @ and inserts his hand into @8s poc(et, but it is, empty. 9ection $%-' and %3' of the 0riminal 2ttempts 2ct provide as follows! %-' 2 person may be guilty of attempting to commit an offence to which this section applies e'en though the facts are such that the commission of the offence is impossible. %3' "n any case whereK %a' apart from this su(section a person8s intention would not be regarded as an intent to commit an offence (ut %(' if the facts of the case had been as he belie'ed them to be, his intention would be so regarded, then, for the purposes of subs.!l" abo'e, he

shall be regarded as ha'ing had an intent to commit that offence.3 ,he abo'e s.1!2" was clearly intended to co'er such cases as trying to steal from empty poc(ets and it is suggested that it is *uite ade*uate to do so. The pickpocket has clearly got beyond the stage of preparation and it makes perfect sense to say that he is attempting to steal from the poc(et. A similar illustration is pro'ided by the would/be assassin who fires at a bed with intent to (ill @, but in fact the bed is empty. It is perfectly logical to con'ict the defendant of attempted murder in such a scenario.

)6ample 3- believe that is crime )in reality it is a crime if done it* but in .,$ there is impossible to do so- still attempt Cnlike the situation in )6ample -, , has done everything he set out to do> it is unlikely that he will feel disappointed when he realises that what he did will not (e crime This type of ease is sometimes said to (e attempting the legally impossi(le and occurs most frequently where the accused recei'es non/stolen goods in the belief that they are stolen. "n Shi'puri :$.4F; %overruling the $.4I decision of the =ouse of /ords in 2nderton v Eyan' the defendant was found in possession of some bags of powder. 0e thought that he was importing heroin. %"n fact he typed his own confession statementL'

hen analysed, the su(stance in his possession was found to (e vegeta(le material similar to snuff.

0e was charged and con'icted of attempting to be (nowingly concerned in dealing with prohibited drugs. =is appeal was dismissed - an impossible attempt is nonetheless an attempt. Muestion! the first question to (e asked was whether the defendant intended to commit the offence. The answer was plainly yes. Ne6t, did he do an act which was more than merely preparatory to the commission of the offence7 The acts were more than merely preparatory to the commission of the intended offence.

 This analysis leads to the conclusion that the defendant was rightly convicted.

 This may (e the e6ample of application 9ection $%-' and %3' %(' of the 0riminal 2ttempts 2ct provide as follows! %-' 2 person may be guilty of attempting to commit an offence to which this section applies e'en though the facts are such that the commission of the offence is impossible. %3' "n any case whereK N. %(' if the facts of the case had been as he belie'ed them to be, his intention would be so regarded, then, for the purposes of subs.!l" abo'e, he shall be regarded as ha'ing had an intent to commit that offence.3

)6ample &- believe that is crime )but in reality it is not a crime if done it* no attempt even if the D did5did not done the 6.,# part & belie'e he did something is crime but in fact there is no such crime ,here is no crime (nown to Hnglish law with which he could be charged. "n )6ample 3 the indictment would refer to the offence "n this e6ample, there is no offence which is tria(le in this country on indictment..

,aafe :$.4&;- D believe !hat he did is crime but in fact it is not crime- no attempt )even if in fact he did not kno! !hat he !as actually doing related to another crime* The defendant had (een enlisted (y a person in 2msterdam to take some packages into the CD. 0e thought the pac(ages contained currency and he also thought that importing money into the country was illegal. "n fact no such crime The pac(ages, in fact, contained cannabis. 0e was not guilty of any offence he did not intend to import cannabis and as there is no offence of importing currency he could not be guilty of attempting to import it.

Sentencing #y virtue of s.) of the 0riminal 2ttempts 2ct $.4$, the maximum penalty for attempted murder is life imprisonment. Other indictable offences are sub+ect to the same maximum as applies on con'iction on indictment for the full offence.

Offences which cannot be attempted The 0riminal 2ttempts 2ct limits lia(ility to attempts to commit offences tria(le on indictment so a person cannot be guilty of attempting a summary offence. ,herefore a person cannot be guilty of attempted assault or battery. #y virtue of s.$%&'%a' a person cannot be guilty of attempting to conspire. Nor, (y s.&%$'%(', can a person (e guilty of attempting to aid, a(et, counsel or procure an offence. =e can, however, (e guilty of attempting to incite.

 #annot Attempt by omission. 2lthough some crimes can (e committed (y omission, e.g. murder %see ?i((ins and 5roctor discussed in 0hapter 3', it appears that an attempt to kill (y omission, e.g. (y a parent withholding food from a child, could not (e charged as attempted murder under the $.4$ 2ct as s.$%$' re*uires :an act which is more than merely preparatory:.

Successful attempts here a person is tried on indictment for attempting to commit an offence, he may be con'icted of the attempt despite the fact that he successfully committed the full offence %s.>!)" of the 0riminal /aw 2ct $.BF'.

Summary 2 defendant will (e guilty of attempt contrary to the 0riminal 2ttempts 2ct $.4$ where he does an act which is more than merely preparatory to the commission of an indicta(le offence with the intention of committing that offence. The conse*uences must be intended (ut rec(lessness may be sufficient as regards the circumstances element of the offence. 6ro'ided the substanti'e offence is capable, in law, of being committed, impossibility will be no bar to an attempt.