Mens Rea of Attempt (OCR A-Level Law): Revision Notes
Mens rea of attempt
Introduction to the mental element
When prosecuting someone for an attempted crime, the Crown must demonstrate that the defendant possessed the necessary intent to commit the complete offence. This is a fundamental requirement that distinguishes attempts from preparatory conduct.
The mental element required for attempt differs from many completed crimes. While certain offences allow for conviction based on recklessness or negligence, attempt requires a higher threshold of culpability. However, the law has developed some complexity in this area, particularly where the substantive offence itself has multiple mental elements.
In certain circumstances, the prosecution may need to prove intent for some aspects of the crime whilst recklessness suffices for others.
Key cases establishing the mens rea requirement
R v Whybrow (1951) - Attempted murder
Case Example: R v Whybrow (1951)
Facts: The defendant wired a soap dish positioned next to a bath with electricity, intending to electrocute the victim.
Legal principle: The Court of Appeal established that for attempted murder, the prosecution must prove an intent to kill. This is a stricter requirement than for murder itself, where intent to cause grievous bodily harm suffices. For attempt, nothing less than an intention to kill will satisfy the mens rea requirement.
Significance: This case demonstrates that attempted crimes may require a more specific intent than their completed counterparts.
R v Millard (1987) - Attempted criminal damage
Case Example: R v Millard (1987)
Facts: The defendant was apprehended after pushing against a wooden fence at a football match.
Legal principle: The court held there was no attempt because the defendant lacked the necessary intent. Crucially, the judgment confirmed that recklessness will not suffice for attempted criminal damage. Even though recklessness is sufficient for the completed offence of criminal damage, attempt requires proof of intention.
Significance: This case reinforces the general rule that attempt requires intent, even where the full offence can be committed recklessly.
A-G Ref. No. 3 of 1992 (1994) - Attempted arson with intent to endanger life
Case Example: A-G Ref. No. 3 of 1992 (1994)
Facts: The defendant threw a petrol bomb at a vehicle containing four men.
Legal principle: The court established a nuanced approach where different mental states can apply to different elements of an attempted offence. For attempted arson with intent to endanger life, the prosecution must prove:
- Intent to damage property, but
- Can rely on recklessness as to whether life would be endangered
Significance: This case shows that where a substantive offence has multiple mental elements, those same elements apply to the attempt. The prosecution does not need to prove intent for every aspect of the crime.
R v Khan (1990) - Attempted rape
Case Example: R v Khan (1990)
Facts: The defendant was convicted of attempted rape after unsuccessfully trying to have sexual intercourse with the victim.
Legal principle: The Court of Appeal upheld the conviction despite the trial judge directing that the Crown only needed to prove:
- An intent to have sexual intercourse, and
- Knowledge that the victim was not consenting, or
- Not caring whether the victim consented
Significance: Following the principle in A-G Ref. No. 3 of 1992, this case confirmed that for attempted rape, the defendant must intend sexual intercourse, but can be reckless as to consent. This mirrors the mental element for the completed offence of rape.
R v Pace and Rogers (2014) - Attempted conversion of criminal property
Case Example: R v Pace and Rogers (2014)
Facts: The defendants purchased what they suspected to be stolen scrap metal. The metal was actually not stolen but had been sold to them by police as part of a test purchase operation.
Legal principle: The Court of Appeal distinguished R v Khan and stated that the defendant must have intent to commit all the elements of the offence, not just some of them. A mere suspicion was held to be insufficient.
Significance: This case clarifies the limits of Khan. While recklessness may suffice for certain elements in some attempts, there must still be intent regarding the core conduct. A suspicion that property might be stolen does not amount to intent to deal with stolen property.
Exam tip: When analysing attempt questions, always identify whether the substantive offence has multiple mental elements. Apply Khan and A-G Ref. No. 3 of 1992 to determine whether intent is needed for all elements or whether recklessness suffices for some.
Factual and legal impossibility
The Criminal Attempts Act 1981 reformed the law by creating an offence of attempting the impossible. However, Parliament distinguished between two categories of impossibility, which have very different legal consequences.
The distinction between factual and legal impossibility is critical:
- Factual impossibility = Can be convicted of attempt
- Legal impossibility = Cannot be convicted of attempt
Factual impossibility
Definition: Factual impossibility arises where, based on the actual facts of the situation, committing the crime was impossible, but the defendant believed it to be possible. In these circumstances, the defendant can still be convicted of an attempted crime.
The key is what exists in the defendant's mind. If they genuinely believe they are committing a crime and take steps to do so, the fact that completion was factually impossible does not prevent conviction. As the saying goes: "there is a possible offence, but they're not actually committing it."
Key authority: R v Shivpuri (1986) established this principle. The defendant can be liable for attempt even where the facts make completion impossible.
Rationale: The law focuses on the defendant's culpable state of mind and dangerous conduct, not on the fortuity of external circumstances.
Worked Example: Factual Impossibility Scenarios
Shoplifting scenario: James intends to shoplift alcohol from a local supermarket. When he arrives at the store, it is closed due to staff illness. James can still be convicted of attempted theft because he intended to steal and took steps toward that goal, even though the factual circumstances made completion impossible.
Murder scenario: Martin, a gang member, goes to another gang member's house intending to kill him. He finds Ian in bed and stabs him ten times. Unknown to Martin, Ian had died naturally in his sleep several hours earlier. Martin can be convicted of attempted murder because he believed Ian was alive and intended to kill him, despite the factual impossibility of killing someone already dead.
Legal impossibility
Definition: Legal impossibility occurs where the defendant believes they are committing a criminal offence, but no such offence actually exists in law. In these circumstances, the defendant cannot be convicted of the offence they mistakenly believe they are committing.
If the conduct in question is not criminal as a matter of law, there can be no attempt to commit it. The defendant's mistaken belief that their conduct is illegal is irrelevant. As the maxim states: "they think they're committing an offence, but it isn't an offence."
Legal principle: You cannot attempt to commit something that is not a crime. The law does not criminalise conduct simply because the defendant mistakenly believes it to be unlawful.
Worked Example: Legal Impossibility Scenarios
Face mask scenario: Jade works in a corner shop and mistakenly believes that selling face masks on a Sunday is a criminal offence. She sells a pack of face masks to Andrew on a Sunday. Because selling face masks on Sundays is not actually an offence, Jade cannot be convicted of any crime, despite her mistaken belief.
Flower selling scenario: Jordan sells flowers from the roadside to passing motorists at traffic lights. He believes this activity is illegal. However, selling flowers in this manner is not a criminal offence. Jordan cannot be convicted because no crime exists in law.
Rationale: Criminal liability requires both a guilty act and a guilty mind in relation to conduct that is actually prohibited by law. A mistaken belief that lawful conduct is criminal does not create criminal liability.
Exam technique: In problem questions, carefully identify whether the impossibility relates to the facts (e.g., stolen goods that aren't actually stolen, a person who is already dead) or to the law (conduct that isn't criminal). Apply the correct rule: factual impossibility leads to liability for attempt; legal impossibility does not.
Remember!
Key Points to Remember:
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Intent is essential: For attempted crimes, the prosecution must prove the defendant intended to commit the complete offence. Recklessness is generally insufficient for attempt.
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Attempted murder requires intent to kill: This is stricter than murder itself (Whybrow). Intent to cause grievous bodily harm is not enough for attempted murder.
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Different elements may have different mental requirements: Where the substantive offence has multiple mental elements, the same mental states apply to the attempt (A-G Ref. No. 3 of 1992; Khan). Intent to rape is required, but recklessness as to consent suffices.
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Factual impossibility does not prevent conviction: If the defendant believes commission is possible but the facts make it impossible, they can still be convicted of attempt (Shivpuri).
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Legal impossibility prevents conviction: If the conduct the defendant believes is criminal is not actually an offence in law, there can be no conviction for attempt.