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Essay: How has the Criminal Attempts Act 1981 simplified the law of attempts in English criminal law

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  • How has the Criminal Attempts Act 1981 simplified the law of attempts in English criminal law
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As cited in Macbeth-II, “The attempt and not the deed confounds us.” These words held by Shakespeare are proper to the law of attempt as well. The substance of this project is concerned with the scope if there is any, the Criminal Attempts Act 1981 has simplified the range of application of the law of attempts in English criminal law. The law of attempt is not easy to recognise and is hence noted for its complexities. Criminal law punishes not only completed crimes but also conduct short completion of a crime. The law of on criminal attempt falls in the category of inchoate crimes. The law of attempt remains to be somewhat mysterious and tarnished for its complexities.
Through my project, the aim shall be to go through the history of criminal attempts but also cover the developments which the Criminal Attempts Act 1981 brought in regards to the actus reus and mens rea towards offences, as the law seems to be too narrow concerning attempts in some areas and too wide in others.

Similarly, I shall go through the law’s deficiencies and approaches for improvement. In the last part of my project, I shall go through the different proposal of reforms brought or attempted at different level towards the existing issues. The main purpose of my study shall be to identify the problems and improvement brought to the current law of attempt through the leading law cases such as Anderton v Ryan , Gullefer , Jones or Geddes , alongside, we shall go through statutory uncertainties and assess the question of whether reform is essential and what options would be the most suitable one to the existing law.

History and early Law of Attempts

However, before we start it’s imperative that we go back in the past, a brief historical survey of the law of criminal attempt may thus be useful in the formulation of this problem. Criminal attempt is conspicuous for its absence in early English law. There is not the least proposition of theory or universal doctrine indeed one might barely assume any. But there seem to have been no precise outcomes of liability for wrong-doing that fell short of the major crimes.”

Prior to the Criminal Attempts Act 1981, it was held that it was a crime to attempt to commit a criminal offence. What was less straightforward and opened the doors to uncertainties was at which stage the respondent became guilty of attempting to commit an offence. One might need to lay down tests which came under the common law in order to determine whether the respondent’s act could be held to be an attempt.

The threats intimidating peace and safety in a society like that of sixteenth-century England must have prompted the court of Star Chamber to punish a large number of potential harms, hoping to nip anticipated violence in the bud itself. Initially, the repression of attempts is to be found as an exercise of criminal policy in the measures adopted by the Star Chamber. The English common law did not have any law of criminal attempt till the 18th century.

The influence of the Star Chamber is evident on common law in this regard. The doctrine of attempt originated in Rex v. Scofield, a case of attempted arson and was finally formulated in Rex v. Higgins, which is in regards to the solicitation to steal goods. In Scofield’s case obvious conduct was held to be a criminal attempt but the Higgins case went further in establishing criminality on a lesser degree of evident behaviour namely, solicitation.

These cases provide a significant hint to the need of improvement of the law of criminal attempts, specifically that the normal technique of ‘assault plus aggravation’, a class of an attempt, in common law could not be accurately applied to check all kinds of harm. This suggests that damaging tendencies of serious nature were to be made punishable as criminal attempt and this remains the fundamental rule of the law even today.

Common Law of Attempts

When such was left for the common law to assess, confusion aroused. Since courts are doing inconsistent things with comparable case scenario and on the other hand, courts are trying to apply the similar rules to completely unrelated situations. The problematic has eluded solution so far. Perhaps the principal reason for this is that its history has been ignored. Firstly a lack of accurate statutory definition of the inchoate offences; secondly, mental and physical components changing significantly with the nature of the applicable offence attempted; and thirdly, the option of a broad or narrow interpretation of the crime by the courts in view of the prevailing punitive policy.

Until 1981 the common law flirted with numerous issues. The ‘equivocality test’ under which a respondent had to take adequate steps towards the crime for his actions undoubtedly to indicate that his purpose was to commit the crime. This was in accordance with the ‘second order harm’ view and the objectivism idea. If the defendant’s actions revealed beyond reasonable doubt the criminal end towards which they were directed then it could be said to be an attempt.

Guidelines were recognised through the proximity and rubicon test to specify where the limit should be between a mere preparatory and a more than ordinary preparatory act. The Proximity test made that acts ‘immediately connected’ with the completion of the entire offence are to be considered as an attempt . Too remote actions shall not be as an appropriate proof to permit a conviction for an attempt as established in the case of Eagleton . A narrow interpretation of such was used by Lord Diplock in Stonehouse .

Equally, the Rubicon test initiated the opinion that a person is only liable once he has ‘crossed the Rubicon and burnt his boats’ , as stated by Lord Diplock in Stonehouse and adopted by the Court of Appeal in Widdowson . Stephen’s Digest of the Criminal Law states that ‘an attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted.’ However, as Lord Parker CJ points out, following Stephen’s definition such ‘does not help to define the point of time at which the series of acts begins.’

The judiciary has been choosy as to which test they considered most suitable to apply. For instance, the ‘series of acts’ was used in Boyle & Boyle , the judges felt that following the ‘last act’ provision would be most favourable. Moving from one test to another illustrates the inconsistency in judgements and curiously, all the cases aforesaid came after the 1981 Act. We could conclude that the law was inadequate to give appropriate guidance as the judiciary were following pre-existed principles through their decisions.

Criminal Attempt Act 1981

Initially, the objective of the Criminal Attempts Act 1981 was endeavoured to create some kind of codified law which would guide and simplify, standardise and provide a level of certainty where there was an absence of consistency .

The aim of the 1981 Act was to switch the common law tests and precedent to a legal meaning of the offence with a test in order to assistance all concerned with common sense and practical approach. This reflects the idea that members of the jury will possibly distinguish when the defendant has been up to no good.

Today in England and Wales attempts are no longer governed by the common law but by the Criminal Attempts Act 1981 , But as at common law, such is drawn a distinction between acts of preparation and acts of perpetration . As Scanlan recommends, one of the problems related with the old law on criminal attempts was the question of how far the respondent would have to progress towards the charge of the completed crime to be said that he had committed the actus reus of attempt.

Initially, the House of Lords were reluctant to interpret these acts of preparation and acts of perpetration in manner that would produce the result intended by Parliament. In Anderton v Ryan , The House of Lords defeated the respondent’s conviction upon the fact that she could not be guilty of attempting to handle stolen goods unless such was shown to have occurred. Their Lordships failed to agree that the respondent’s belief that goods were stolen was sufficient to result in liability. Such a result may have been the purpose of the 1981 Act but their Lordships felt that Parliament would have to explain its intentions more clearly before the courts would be eager to impose liability merely of what the defendant had believed she was doing, as opposed to what she was truly doing” .

In R v Shivpuri , the House of Lords had to overrule its own preceding decision in Anderton v Ryan . The respondent’s appeal to the House of Lords against his conviction was dismissed. It was held that s.1 of the Act was to be interpreted as requiring the defendant to be judged on the facts as he thought them to be. On this basis the defendant had taken that he supposed to be ‘more than merely preparatory.’
The judgement overrules Haughton v Smith and gives effect to s.1 of the 1981 Act in the way intended by Parliament. The s.1 of the 1981 Act: “if, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence” . In the Haughton v Smith case, the defendants were charged with attempting to handle stolen goods, but the House of Lords held that the defendants could not be guilty of attempting to commit the crime which, in the situations, was impossible to carry out”.

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