Preliminary Offence: Attempt (AQA A-Level Law): Revision Notes

Mens Rea of Attempt

When a person is charged with attempting to commit a crime, the prosecution must establish the required mental state (mens rea) for the offence. Understanding what level of intent is necessary is crucial for determining criminal liability in attempt cases. This content is assessed in Paper 2 of the A-Level Law examination.

The general rule: intent to commit the full offence

For an attempted crime, the prosecution must prove that the defendant had an intent to commit the full offence. This is a higher threshold than for many completed crimes, where recklessness may sometimes suffice.

This principle means that the defendant must have the specific intention to bring about the criminal result, not merely foresight that it might occur. The law distinguishes between different levels of mental culpability, and for attempts, the threshold is deliberately set high to ensure that only those with genuine criminal intent are convicted.

Key cases establishing mens rea principles

R v Whybrow (1951)

Facts: The defendant wired a soap dish next to the bath in an attempt to electrocute the victim.

Offence attempted: Murder

Legal principle: The Court of Appeal established that for attempted murder, the mens rea required is an intent to kill. This is stricter than the mens rea for murder itself, where an intent to cause grievous bodily harm would suffice. This case demonstrates that attempt can require a higher level of intent than the completed offence.

R v Millard (1987)

Facts: The defendant was arrested after pushing against a wooden fence at a football match.

Offence attempted: Criminal damage

Legal principle: The court held there was no attempt because the defendant lacked the necessary intent. The case confirmed that recklessness will not suffice for the mens rea of attempt. Since criminal damage can be committed recklessly, but attempt requires intent, the defendant could not be convicted of attempted criminal damage.

A-G Ref. (No. 3 of 1992) (1994)

Facts: The defendant threw a petrol bomb at a car containing four men.

Offence attempted: Arson with intent to endanger life

Legal principle: The court held that while the defendant must have an intent to damage property, they could be reckless as to endangering life. This demonstrates that for some offences, different mental states may be required for different elements of the crime.

Significance: This case shows that the mens rea for attempt can mirror the mens rea requirements of the full offence when that offence itself has different mental states for different elements. The defendant must intend the primary actus reus but may be reckless as to consequences.

R v Khan (1990)

Facts: The defendant was convicted of attempted rape after being unsuccessful in trying to have sexual intercourse with the victim.

Offence attempted: Rape

Legal principle: The conviction was upheld despite the trial judge's direction that the prosecution only needed to prove an intent to have sexual intercourse knowing the victim was not consenting or being reckless as to consent. This case extended the law on attempts by confirming that where recklessness suffices for an element of the full offence (here, consent), it can also suffice for an attempt of that offence.

R v Pace and Rogers (2014)

Facts: The two defendants bought what they suspected to be stolen scrap metal. However, the metal was not actually stolen but had been sold to them by the police as part of a test purchase operation. This case was distinguished from R v Khan.

Offence attempted: Conversion of criminal property

Legal principle: The Court of Appeal stated that the defendant must have an intent to commit all the elements of the offence, not just some of them. A mere suspicion is insufficient. This case distinguished R v Khan and clarified that there are limits to how recklessness can substitute for intent in attempt crimes.

MS, Application by the Prosecution for Leave of Appeal (2021)

Facts: The defendant was stopped by police 85 miles from Dover while intending to board a ferry to France with her child. She had been refused permission to take her child out of the country.

Offence attempted: Child abduction

Legal principle: The original trial judge rejected the attempted crime charge, arguing that 85 miles was too far from the point of completion. However, the Court of Appeal disagreed, stating that the defendant could have 'embarked upon' the crime at a considerable distance from Dover, potentially even when she left her home in Stoke. The court emphasized that geographical proximity is not a sole deciding factor and that each case must be looked at on its own facts.

Significance: This recent case demonstrates that the location or proximity to completion is not the sole determining factor for attempt. The focus should be on whether the defendant has moved beyond mere preparation and whether they possess the necessary intent, which can be formed at an early stage in the criminal enterprise. This case is important for showing modern judicial interpretation of attempt principles.

Attempting an 'impossible' crime

The Criminal Attempts Act 1981 introduced provisions dealing with situations where a defendant attempts to commit an offence that is, in fact, impossible to complete. The Act drew a distinction between two types of impossibility, which have different legal consequences.

Factually impossible

A crime is factually impossible when, based on the actual facts, the commission of the crime was impossible, although the defendant believed it to be possible. In such cases, the defendant can still be convicted of an attempted crime.

This means that if the defendant has the necessary intent and takes steps toward committing what they believe to be a crime, they can be convicted of attempt even if, unknown to them, the crime could not actually be completed due to factual circumstances. The law focuses on the defendant's intentions and beliefs rather than the objective reality.

Legally impossible

A crime is legally impossible when the defendant believes they are committing an offence, but in fact they are not actually committing any offence at all because no such crime exists in law. In such cases, the defendant cannot be convicted of the offence they think they are committing.

Key cases on impossible attempts

The following cases chart the development of the law on impossible attempts, from initial confusion to the established modern position.

Anderton v Ryan (1985)

Facts: The defendant admitted to police that she had bought a video recorder which she thought was stolen.

Offence attempted: Handling stolen goods

Legal principle: The House of Lords quashed the conviction, effectively ignoring the provisions of the 1981 Act. They held that the defendant could not be convicted for something she believed to be true that turned out to be wrong. The court took a restrictive interpretation of the Act.

Significance: This case was controversial and was quickly overruled within a year. It represents a misinterpretation of the 1981 Act and is now only of historical interest, demonstrating how the law initially struggled with the concept of impossible attempts.

R v Shivpuri (1986)

Facts: The defendant, a drugs courier, was arrested while carrying what he thought was heroin. In reality, the substance was a harmless vegetable-based material.

Offence attempted: Knowingly being concerned in dealing with a controlled drug

Legal principle: The House of Lords overruled Anderton v Ryan and convicted Shivpuri of attempting the impossible. The court held that the 1981 Act clearly intended to make factually impossible attempts criminal offences. The focus should be on what the defendant believed and intended, not on whether the crime could objectively be completed.

R v Jones (2007)

Facts: The defendant tried to solicit young girls for sexual activity online, including a girl called 'Amy' whom he believed to be 12 years old. In reality, 'Amy' was an undercover female police officer.

Offence attempted: Inciting a child under 13 to engage in sexual activity

Legal principle: Even though 'Amy' was not a real 12-year-old girl, the defendant was still convicted of attempting the impossible. The court applied the principle from Shivpuri to a modern context involving online offences and undercover police operations.

Significance: This case demonstrates the continued application of the Shivpuri principle and shows how the law on impossible attempts applies to contemporary crimes, particularly those involving online activity and undercover operations. It confirms that factually impossible attempts remain criminal even in the digital age.

Exam guidance

When answering exam questions on the mens rea of attempt, students should follow this structured approach:

For problem questions:

For essay questions:

When evaluating the law on mens rea of attempt, consider:

• Whether the requirement for intent (rather than recklessness) is too strict or appropriately rigorous
• The distinction between Whybrow (attempted murder requiring intent to kill) and murder itself (where intent to cause GBH suffices)
• The flexibility shown in Khan versus the stricter approach in Pace and Rogers
• Whether the law on impossible attempts strikes the right balance between punishing dangerous intentions and respecting the principle of legality
• Potential for reform or inconsistencies in the current law

Remember!