marigoldafonso's version from 2016-04-18 09:04


Question Answer
The Criminal Attempts Act 1981 enacted to deal with the perceived problem that under the pre-existing law there could be no criminal liability for attempting the impossible.
section 1(1)not all preparatory acts are excluded, only merely preparatory acts are.
Totsidefendants 'had committed acts which were preparatory, but not merely so'.
The jury will decide whether an act is more than merely preparatory, the leading decision on this issue is Gullefer
Gullefer D had to embark on the crime proper. The courts have viewed this as there only being an attempt where there has been a ‘confrontation’ with the V (i.e. attempted rape) or property (burglary etc) as seen in Jones.
Conversely, in cases where there has been no confrontation the defendants have tended to escape liability.
Geddes,he could not be liable as he had not 'actually tried' to commit the offence.
crude 'confrontation' approachled to results that are incompatible with the 'embarking on the crime proper' approach as seen in AG’s Ref No 1 of 1992.
AG’s Ref No 1 of 1992.defendant was clearly blameworthy and deserved punishment. However, it is difficult to see that he had 'embarked on the crime' of rape when his actions amounted to assault or battery (this was prior to sexual assault).
This approach is highly unsatisfactory as many offenders have escaped liability. The strictness of this approach is seenwhere the Court has ruled that the actions of the D could not be ‘sufficient in law’ to amount to an attempt. Even if they could amount to an attempt, the jury would have to consider as a question of fact whether the acts were sufficient for an attempt.
explanation behind the attempted rape decisions appear to be policy driven. It must be asked what policy considerations were discussed in Geddes and Campbell as they too had the MR for their offences.
It is inevitable that policy considerations will influence the interpretation of the test for the AR of attempts.
Law Commission, there are two main defects to the present law of attempts:'more than merely preparatory' test of proximity is too vague and uncertain.Secondly, Geddes and Campbell have rendered the offence unduly narrow.
They argue too much emphasis has been placed on the offence's label and too little regard has been paid to the underlying rationale for the offence
The Commission proposed that the present law of attempt should be repealed and replaced by two separate inchoate offences: 1. an offence of criminal attempt which would be limited to last acts needed to commit the offence 2. an offence of criminal preparation, limited to acts of preparation which are regarded as part of the execution of the plan to commit the intended offence.
There appears to beno moral distinction involved in the proposed two separate offences.
There are further problems with the proposed introduction of two separate offences.First, in restricting attempts to the last act would render it very narrow.
Secondsignificant difficulties in distinguishing attempts from criminal preparation. At what point does criminal preparation become a criminal attempt?
Thirdthe new crime of criminal preparation would be too broad and could lead to the risk of over-criminalization as there is no limitation on the type of offence that needs to be committed.
It is arguable that attempts should continue to be regarded as being as serious as the complete offence, as the label attached to attempts by the public are regarded as serious and in some cases it may be sheer luck that the crime was not completed
D has broadly the same MR as for the full offence, however some argue attempts should be punished less severely as is done in other jurisdictions.
However, Duff has proposed that a person convicted of an attempt should in exceptional circumstances be punished for the full offence.
A further argument for insisting that conduct comes close to the actual commission of the crime is that it affords intending criminals an opportunity to abandon the criminal enterprise. In doing this, we are according the person respect as a responsible agent who is in principle susceptible to rational persuasion.
A test is needed that encapsulates the need for D’s conduct to cross the threshold and display a vivid danger that the full offence will be committed.
Clarkson (2009) states that a possible reformulation'does an act which is more than merely preparatory, and is closely connected to, the offence in terms of time, location and acts remaining to be accomplished
test is broad and arguably vague and capable of generating uncertainty.However, it has the advantage of stressing that mere preparatory acts will not suffice. All the actions in Jones were merely preparatory.
Additionally, unlike the present law, emphasises that the D must have come close to committing the offence but not so close as to have embarked on the crime. With the aid of examples it would ensure that defendants in the controversial cases discussed above (such as Geddes) would be brought within its ambit.
If this test were to be used, it is crucial that it becomes a matter of law whether the D’s actions amount to the AR of an attempt. . It is absurd that under s4(3) the judge will rule that acts may as a matter of law be more than merely preparatory, and then ask the jury to decide this same question as a matter of fact. This amounts to juries deciding questions of law.