Preliminary Offences (OCR A-Level Law): Revision Notes
Actus Reus of Attempt
Introduction to attempt offences
Criminal law recognises that a defendant can be held liable even when they fail to complete a crime. The law of attempt allows prosecution of those who try but are unsuccessful in committing an offence. The central challenge for courts has been determining the precise point at which preparatory conduct crosses the line into a criminal attempt, and when an attempt escalates into the full offence.
The law seeks to strike a balance: punishing dangerous conduct that comes close to completing a crime, while avoiding criminalising mere thoughts or early preparations that may never lead to actual harm.
The statutory definition of attempt
The law on attempt is found in the Criminal Attempts Act 1981. Under s1(1) of this Act:
A person is guilty of attempting to commit an offence if they do an act which is more than merely preparatory to the commission of the offence, with the intent to commit the offence.
This definition establishes two key requirements:
- An actus reus element: conduct that is more than merely preparatory
- A mens rea element: intent to commit the full offence
This note focuses specifically on the actus reus requirement.
Requirements for the actus reus of attempt
For the actus reus of attempt to be established, two elements must be present:
1. A positive act
The defendant must perform a positive act. An omission (failure to act) cannot form the basis of an attempt. This reflects the general principle in criminal law that liability for omissions is exceptional and usually requires a specific duty to act.
2. An act that is "more than merely preparatory"
The act must go beyond simple preparation and reach the threshold of being "more than merely preparatory to the commission of the offence" (often abbreviated as MTMP).
This is the critical and most challenging element to establish. It requires the court to determine whether the defendant's conduct has progressed sufficiently far along the path toward completing the crime.
Understanding "merely preparatory" versus "more than merely preparatory"
The distinction between conduct that is merely preparatory (MP) and conduct that is more than merely preparatory (MTMP) is crucial in attempt cases.
Merely preparatory conduct includes actions such as:
- Getting into position to commit the offence
- Equipping oneself with the necessary tools or items
- Planning or preparing to commit the crime
- Moving toward the location where the crime will occur
Such conduct, while potentially suspicious or even indicative of criminal intent, does not constitute attempt. However, it may amount to other preliminary offences such as conspiracy or going equipped to commit an offence.
More than merely preparatory conduct involves actions where the defendant has:
- Actually tried to commit the offence
- Moved from preparation into execution
- Crossed the threshold into the commission phase of the crime
The law requires a question of fact to be determined in each case: has the defendant moved beyond the preparatory stage and progressed far enough toward completing the full offence for their conduct to constitute an attempt?
The key test questions
Two Critical Questions to Determine MP vs MTMP:
To help determine whether conduct is MP or MTMP, courts consider two questions:
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Has the defendant actually tried to commit the offence?
- If yes, this suggests the conduct is MTMP and may constitute attempt.
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Has the defendant simply got ready, got into position, or equipped themselves to commit the offence?
- If this is all that has occurred, the conduct remains MP and does not amount to attempt.
These questions focus on whether the defendant has embarked on the crime itself, or is still at the preparatory stage.
Cases where acts were "merely preparatory"
The following cases illustrate situations where the courts held that the defendant's conduct had not progressed beyond mere preparation and therefore did not constitute attempt.
R v Gullefer (1987)
Facts: The defendant attempted to stop a greyhound race by jumping onto the track because the dog he had bet on was losing. His aim was to have the race declared void so he could recover his stake money.
Offence attempted: Theft
Decision: The Court of Appeal held that the defendant's conduct was merely preparatory. He had not actually attempted to commit theft. After stopping the race, he would still have needed to go and ask for his money back. Jumping onto the track was preparation for the theft, not the theft attempt itself.
Principle: Conduct that is several steps away from the completed offence remains merely preparatory.
R v Campbell (1990)
Facts: The defendant approached a post office wearing a crash helmet and carrying a knife and a threatening note in his pocket. He was arrested by police outside the post office before entering.
Offence attempted: Robbery
Decision: The Court of Appeal ruled that the defendant's actions were merely preparatory. He had not entered the post office or threatened any staff members. He had equipped himself and positioned himself near the location, but had not embarked on the robbery itself.
Principle: Getting into position and equipping oneself, even in very close proximity to the target, does not necessarily constitute attempt. The defendant must take the next step of actually trying to commit the crime.
R v Geddes (1996)
Facts: The defendant was seen in the boys' toilets of a school and ran away when challenged. His rucksack was later found nearby containing rope, a large knife, and masking tape.
Offence attempted: False imprisonment
Decision: The Court of Appeal held that the defendant had not attempted false imprisonment. Although he was equipped with items that could be used to commit the offence, and was in the location where it might occur, he had not actually tried to commit the crime itself. There was no evidence he had approached or attempted to detain any child.
Principle: Presence at the scene with the means to commit an offence, without more, is merely preparatory. The defendant must move toward actually committing the criminal act.
R v Nash (1999)
Facts: Two letters were left in the street addressed to "Paper Boy," inviting the victim to engage in acts of gross indecency. A third letter offered employment. Police set up a surveillance operation in a local park using a volunteer to meet the defendant as arranged in the third letter.
Offence attempted: Procuring an act of gross indecency
Decision: The Court of Appeal held that the third letter was merely preparatory. Since it did not involve a request for an act of gross indecency (only offered employment), it could not constitute an attempt to procure such an act.
Principle: Preparatory steps that do not themselves involve the criminal conduct (even if they are part of a broader plan) remain merely preparatory.
MS, Application by the Prosecution for Leave to Appeal (2021)
Facts: The defendant was stopped 85 miles from Dover while heading to board a ferry to France. She had previously been denied permission to take her child out of the country.
Offence attempted: Child abduction
Decision: The Court of Appeal stated that geographical proximity alone is not the sole deciding factor in determining whether conduct is MTMP. Each case must be examined on its own specific facts. The case was remitted to the Crown Court for reconsideration.
Principle: There is no rigid test based on distance or proximity. The court must consider all circumstances to determine whether the defendant has moved from preparation to attempt.
Cases where acts were "more than merely preparatory"
The following cases demonstrate situations where the courts found that the defendant had progressed beyond mere preparation and their conduct constituted attempt.
R v Boyle and Boyle (1987)
Facts: The defendants were found standing next to a door with a broken lock and hinge.
Offence attempted: Burglary
Decision: The court held that the conduct was more than merely preparatory and constituted attempted burglary. All the defendants needed to do to complete the full offence was enter the building. By breaking the lock and hinge, they had embarked on the commission of the burglary.
Principle: When a defendant has done everything necessary except the final act required to complete the offence, this is MTMP.
R v Jones (1990)
Facts: The defendant got into the victim's car and pointed a loaded shotgun at him.
Offence attempted: Murder
Decision: The conduct was held to be more than merely preparatory to murder. The defendant had moved beyond preparation by getting into the car with a loaded weapon and pointing it at the victim. All that remained was to pull the trigger to complete the offence.
Principle: Where the defendant is in the process of trying to commit the crime and only one final act remains, this constitutes attempt.
Attorney-General's Reference No. 1 of 1992 (1993)
Facts: The defendant dragged the victim into a shed intending to rape her, but was unable to maintain an erection.
Offence attempted: Rape
Decision: The Court of Appeal held that the conduct was more than merely preparatory to rape. The defendant had embarked on the commission of the offence by dragging the victim to an isolated location with the clear intent to rape her. All that remained was penetration to complete the full offence.
Principle: When a defendant has clearly embarked on committing the crime and is actively trying to complete it, even if unsuccessful due to circumstances beyond their control, this is MTMP.
The importance of individual facts
A key principle emerging from these cases is that whether conduct is MP or MTMP is a question of fact to be determined in each individual case. There is no fixed rule or formula that applies universally.
Factors Courts Consider:
Courts consider factors such as:
- How close the defendant came to completing the offence
- Whether the defendant had begun to execute the criminal plan
- What further steps would have been needed to complete the crime
- The defendant's proximity to the victim or target
- Whether the defendant had moved from planning to action
As demonstrated in MS (2021), geographical proximity or distance from the intended crime scene is not determinative. The court must examine all circumstances holistically.
Exam guidance for actus reus of attempt
Answering Questions on Actus Reus of Attempt:
When answering questions on the actus reus of attempt:
1. State the legal framework
- Begin by citing s1(1) of the Criminal Attempts Act 1981
- Explain that the actus reus requires a positive act that is more than merely preparatory
2. Apply the key test questions
- Ask: has the defendant actually tried to commit the offence?
- Ask: has the defendant simply got ready, positioned themselves, or equipped themselves?
3. Use case law to support your analysis
- Compare the scenario facts to both MP cases (Gullefer, Campbell, Geddes) and MTMP cases (Boyle, Jones, A-G Ref)
- Many exam scenarios are based on actual cases, which provides a clear guide to the answer
- Use cases confidently and accurately, stating the ratio decidendi
4. Reach a clear conclusion
- Determine whether the conduct is merely preparatory or more than merely preparatory
- If MP, note that while not attempt, it could constitute other offences such as conspiracy or going equipped
- If MTMP, conclude that the actus reus of attempt is satisfied
5. Consider each case on its facts
- Remember there is no fixed formula
- Analyze all relevant circumstances
- Don't rely solely on proximity or any single factor
Remember!
Key Points to Remember:
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Attempt requires a positive act, not an omission – failure to act cannot form the basis of attempt liability
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The critical threshold is "more than merely preparatory" – this is the dividing line between lawful preparation and criminal attempt under s1(1) Criminal Attempts Act 1981
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Two key questions determine if the threshold is met:
- (1) Has the defendant actually tried to commit the offence?
- (2) Or have they simply got ready, positioned themselves, or equipped themselves?
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Merely preparatory conduct includes getting into position and equipping oneself – examples: approaching a post office with robbery tools (Campbell), being present with equipment (Geddes)
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More than merely preparatory means embarking on the crime itself – examples: breaking a lock to enter (Boyle), pointing a gun at the victim (Jones), dragging a victim to commit rape (A-G Ref)
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Each case is determined on its own facts – there is no rigid formula based on distance, proximity, or any single factor; courts examine all circumstances holistically