Actus Reus of Attempt (AQA A-Level Law): Revision Notes
Actus Reus of Attempt
Introduction to attempted crimes
Criminal law allows for the punishment of individuals who try but fail to complete a crime. This recognises that a person who has embarked on committing an offence poses a danger to society, even if they are unsuccessful. However, the law must strike a careful balance – it cannot punish someone for merely thinking about crime or making vague preparations. There must be a clear point at which preparation becomes an actual attempt.
The law seeks to balance two competing interests: protecting society from dangerous individuals who attempt crimes, while also ensuring that people are not punished for mere thoughts or overly remote preparatory acts. This tension shapes the entire law of attempts.
The key question the courts face is: at what stage does a person's conduct move from innocent preparation to a criminal attempt? This is particularly important because attempting to commit a crime is itself a criminal offence under the Criminal Attempts Act 1981.
Legal definition under section 1(1) Criminal Attempts Act 1981
Statutory Definition of Attempt
Under section 1(1) of the Criminal Attempts Act 1981, a person is guilty of attempting to commit an offence if:
- They commit an act which is more than merely preparatory to the commission of the offence, and
- They intend to commit the full offence
This establishes that an attempt requires both conduct (actus reus) and intention (mens rea). This note focuses specifically on the conduct element – the actus reus.
Requirements for the actus reus
The actus reus of attempt has two essential requirements that must both be satisfied:
1. There must be a positive act
An attempt cannot be committed by omission (a failure to act). This means that a person cannot be guilty of attempted murder, for example, simply by failing to feed someone, even if they intended that person to die. There must be some positive action that moves toward the commission of the offence.
This requirement means that attempt liability is narrower than liability for complete offences. Some complete offences (like murder or gross negligence manslaughter) can be committed by omission, but their attempted counterparts cannot.
2. The act must be 'more than merely preparatory to the commission of the offence' (MTMP)
This is the critical test. The defendant's conduct must have progressed beyond simple preparation. If the act is only 'merely preparatory' (MP), it does not constitute an attempt, no matter how clear the defendant's intention might be.
The distinction between merely preparatory and more than merely preparatory
This distinction is assessed as a question of fact in each case. The jury must decide whether the defendant has moved beyond preparation and has actually tried to commit the offence.
The Two Key Questions
The courts ask two key questions to determine whether an act is more than merely preparatory:
1. Had the defendant actually tried to commit the offence?
If yes, this suggests the act is more than merely preparatory (MTMP).
2. Or, had they simply got ready, got into position, or equipped themselves to commit the offence?
If this is all they did, their acts remain merely preparatory (MP) and do not amount to an attempt.
Important note about case law
While cases decided before the Criminal Attempts Act 1981 can provide some guidance, cases decided after 1981 give a more accurate interpretation of what amounts to an attempt under the current law. Students should focus primarily on post-1981 authorities when analysing attempt scenarios.
Cases where acts were held to be merely preparatory (MP)
The following cases illustrate situations where defendants were found to be only at the preparation stage, rather than actually attempting the offence. In each case, the defendant was getting into position or equipping themselves, but had not yet tried to commit the actual crime.
R v Gullefer (1987) – Attempted theft
Facts: The defendant tried to stop a greyhound race by jumping onto the track because his dog was losing and he wanted to recover his stake money.
Court of Appeal decision: The acts were merely preparatory. The defendant had not yet attempted theft because he would still need to go and ask for his money back after stopping the race. He had not yet tried to appropriate property belonging to another.
Legal principle: Getting into position to commit a crime, without taking the steps necessary to actually commit it, remains at the preparation stage.
R v Campbell (1990) – Attempted robbery
Facts: The defendant approached a post office wearing a crash helmet, carrying a knife and a threatening note. He was arrested by police outside the post office before entering.
Court of Appeal decision: The acts were merely preparatory. The defendant had not entered the post office or threatened staff. He had equipped himself and got into position, but had not tried to commit the robbery itself.
Campbell's Significance
This case is particularly important because it demonstrates that even when fully equipped and in close proximity to the intended target, a defendant may still be at the preparatory stage if they have not begun to carry out the substantive offence (e.g., by entering and confronting victims).
Legal principle: Even when fully equipped and in close proximity to the intended target, if the defendant has not begun to carry out the robbery (e.g., by entering and confronting victims), they have not yet attempted the offence.
R v Geddes (1996) – Attempted false imprisonment
Facts: The defendant was seen in the boys' toilets at a school and ran off when challenged. His rucksack was later found nearby, containing rope, a large knife, and masking tape.
Court of Appeal decision: The acts were merely preparatory. Although the defendant was equipped with items suggesting an intention to commit false imprisonment, he had not tried to commit the crime itself – he had not approached or attempted to detain any victim.
Legal principle: Presence at the intended location with equipment is not enough. The defendant must have actually tried to commit the offence against a victim.
R v Nash (1999) – Attempted procurement of gross indecency
Facts: Two letters found in the street were addressed to 'Paper Boy', inviting the victim to engage in acts of gross indecency. A third letter offered employment. Police set up a sting operation with a volunteer to meet the defendant as arranged in the third letter.
Court of Appeal decision: The third letter was merely preparatory. As it did not involve a request for an act of gross indecency (only offering employment), it could not amount to an attempt to procure such an act.
Legal principle: Preparatory communications or arrangements, even if part of a plan to commit an offence, may not amount to an attempt if they do not directly involve trying to commit the substantive offence.
MS, Application by the Prosecution for Leave of Appeal (2021) – Attempted child abduction
Facts: The defendant was stopped 85 miles from Dover while heading to board a ferry to France. She had been denied permission to take her child out of the country.
Court of Appeal decision: The Court emphasised that 'geographical proximity' (being close to the point of committing the offence) was not the sole deciding factor. Each case must be looked at on its own facts. The case was sent back to the Crown Court for reconsideration.
Rejecting a Rigid Distance Test
The MS case confirms that there is no rigid test based on distance or proximity. The court must examine all circumstances to determine whether the defendant had moved beyond preparation to actually attempting the offence. This prevents an overly mechanical approach to the MTMP test.
Legal principle: There is no rigid test based on distance or proximity. The court must examine all circumstances to determine whether the defendant had moved beyond preparation to actually attempting the offence.
Cases where acts were held to be more than merely preparatory (MTMP)
The following cases demonstrate situations where defendants had progressed beyond mere preparation and were actually trying to commit the offence. A useful test emerging from these cases is: "All they had to do was..." – if the defendant only needed to complete one final act to commit the full offence, they have likely attempted it.
The "All They Had To Do Was..." Test
This practical test helps identify MTMP situations: if the defendant has reached the stage where all they had to do was complete one final act to commit the full offence, they have likely moved beyond preparation into attempt. However, this is a guide rather than a definitive rule – the ultimate question remains whether they were actually trying to commit the offence.
R v Boyle and Boyle (1987) – Attempted burglary
Facts: The two defendants were found standing next to a door with a broken lock and hinge.
Court of Appeal decision: The acts were more than merely preparatory. All they had to do was enter the building to commit the full offence of burglary. Breaking the lock and hinge demonstrated they were actually trying to gain entry.
Legal principle: Where the defendant has done everything necessary to commit the offence except the final act, they have attempted the crime.
R v Jones (1990) – Attempted murder
Facts: The defendant got into the victim's car and pointed a loaded shotgun at him.
Court of Appeal decision: The acts were more than merely preparatory. All he had to do was pull the trigger to commit murder. By getting into the car and pointing the gun at the victim, he was trying to kill him.
Legal principle: Confronting the victim with a deadly weapon and being in a position to immediately cause death amounts to an attempt, even if further acts (like pulling the trigger) are still required.
Attorney-General's Reference (No. 1 of 1992) (1993) – Attempted rape
Facts: The defendant dragged the victim into a shed to have sex with her but could not maintain an erection to complete penetration.
Court of Appeal decision: The acts were more than merely preparatory. All he had to do was penetrate the victim to commit the full offence of rape. Dragging her into the shed and attempting sexual activity showed he was trying to commit rape.
Physical Impossibility and Attempt
This case demonstrates an important principle: physical inability to complete the full offence does not prevent conduct from amounting to an attempt. If the defendant is trying to commit the crime but fails due to circumstances beyond their control, they have attempted it.
Legal principle: Physical inability to complete the full offence does not prevent conduct from amounting to an attempt. If the defendant is trying to commit the crime but fails due to circumstances beyond their control, they have attempted it.
Applying the law in examinations
When answering problem questions on attempt, you should follow this structured approach:
1. State the statutory definition from section 1(1) of the Criminal Attempts Act 1981.
2. Identify the full offence that the defendant is alleged to have attempted.
3. Apply the MTMP test by asking:
- Has the defendant actually tried to commit the offence?
- Or have they only got ready, got into position, or equipped themselves?
4. Use relevant case law to support your analysis. Many exam scenarios are based on actual cases (like R v Campbell), which should guide your answer.
5. Remember it is a question of fact – you must look at all the circumstances and draw a reasoned conclusion about whether the defendant crossed the line from preparation to attempt.
6. Apply cases accurately – know the facts, the decision, and the legal principle from each case so you can draw meaningful comparisons.
Exam Technique Tip
When applying case law, don't just state "this is like Campbell" or "this is like Jones." Instead, identify the specific similarities and differences between the scenario and the case, and explain why those similarities or differences matter for determining whether the defendant's acts were MP or MTMP.
Key Points to Remember:
- An attempt requires a positive act, not an omission
- The act must be more than merely preparatory (MTMP) to the commission of the offence
- If the act is only merely preparatory (MP), there is no attempt, regardless of the defendant's intention
- The distinction between MP and MTMP is a question of fact in each case
- MP cases: Defendant was getting ready, positioning themselves, or equipping themselves (e.g., Campbell outside the post office, Geddes in the toilets with equipment)
- MTMP cases: Defendant was actually trying to commit the offence – "all they had to do was..." complete the final act (e.g., Boyle and Boyle breaking in, Jones pointing the gun)
- Geographical proximity alone is not determinative – the court looks at all facts (MS Application case)
- Focus on post-1981 cases for the most accurate interpretation of the current law
- The two-question test: (1) Had they tried to commit it? or (2) Were they just getting ready?