In Campbell (1991) D was arrested near a post office, armed with an imitation gun and was convicted of attempted armed robbery. His conviction was quashed on the finding that he had not yet entered the post office, so the acts were not more than preparatory to the offence of robbery. Also, in Geddes (1996) D was discovered in a boys’ toilet of a school with a large knife, ropes and masking tape. His conviction for attempted false imprisonment was quashed on the grounds that the acts were not more than merely preparatory to the actual offence.
These two cases show the inconsistencies with which the courts deal with this area of law. The CoA accepted that both Campbell and Geddes had the intention to commit the crime and one wonders at what stage such a person can be caught in order to be criminally liable.
In attempting to do the impossible, the D can be convicted in both the practical and theoretical sense even though there is an absence of the actus reus. In Anderton v Ryan (1985) the D had received a videocassette believing it to be stolen. She was therefore charged with attempted handling although the object was not stolen.
However, a year later in R v Shivpuri (1987) D was convicted of an attempt to be knowingly dealing with and harbouring a prohibited drug. Shivpuri admitted that he thought that the substance in his possession was a drug but on investigation, it turned out to be a harmless substance. His conviction was quashed on the grounds that the complete offence was impossible.
A Law Commission report, which preceded the Criminal Attempts Act, considered the desirability of striking a balance between the protection of the public from the social danger caused by the contemplation of a crime and the individual freedom to think or even fantasise.
A person ought not be punished for merely contemplating the commission of the offence. It is not until D goes beyond the merely preparatory acts that he can be held criminally liable for an attempt. The “proximity test” examines how close D’s acts were to the full offence. The “Rubicon test” examines if D has gone ‘beyond the point of no return’.
In Jones (1990) D’s mistress left him in favour of another man X. D then went to where he knew he would find X and got into X’s car with him. D pulled out a gun and pointed it at X but X managed to get the gun off him and threw it away. D claimed that the stage of attempted murder had not yet been reached because he had not removed the safety-catch, put his finger on the trigger and pulled it. The CoA held that there was sufficient evidence on which a jury could find that D was attempting to kill X. He therefore failed the “Rubicon test”.
The decision in Gullefer reflects the wish expressed by the Law Commission that the point at which a course of conduct amounts to an offence is a matter of fact for the jury in each case to consider, using principles of common sense and that the older common law principles would not normally need to be considered in order for a jury to come to a conclusion about this.
An ordinary juror may also find it difficult to determine when an attempt is said to have occurred, without some further guidance from the trial judge. This may lead to jury nobbling. This is where the jury is forced by the trial judge, the media etc into arriving at a particular verdict. As a result of this, the conviction may be quashed.
In such cases as Campbell should the police wait until the victims’ lives are put at risk before intervening? It might be too late for that! There are difficulties in defining at what precise point an attempt can be said to have occurred. Unless this is more clearly dealt with, the police will find it very hard to know when to arrest someone and when to wait until they have acted beyond mere preparation. This was the problem in Campbell.
