A person who genuinely attempts to commit a criminal offence and fails still deserves to be punished just as much as a person who succeeds in committing an offence

A person who genuinely attempts to commit a criminal offence and fails still deserves to be punished just as much as a person who succeeds in committing an offence.

The offence of attempt is the closest we get in the English legal system to satisfying the statement in question; however it is still the case that many defendants escape punishment because they didn’t go far enough in attempting the crime, despite genuinely attempting to commit a criminal offence. In this essay I will analyse the existing law on attempts and conclude as to whether it is satisfactory.

Attempt is an inchoate offence and is covered by the Criminal Attempts Act 1981. This act provides that “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”. The criminal law does not punish people for just intending to commit an offence; intent is a mental quality that implies a purpose, whereas attempt implies an effort to carry that purpose or intent into execution. An attempt goes beyond preliminary planning and involves a move towards the commission of the crime. The question as to where the defendant has gone before a merely preparatory act is unclear and open to differences in opinion.

One of the reasons for this offence is that without it, the police would often have to choose between preventing an offence being committed and prosecuting the offender. However, as illustrated in cases such as Campbell this is still not always the case. In Campbell the defendant planned to rob a post office but was prevented from doing so because of a tip off to the police. He was carrying an imitation gun and a threatening note which he had planned to pass onto the cashier at the post office, however he was not convicted as the court did not see his actions to be more than preparatory. Although the police still have the power to lawfully arrest a defendant such as Campbell because they have reasonable grounds to believe that they are about to commit an arrestable offence, it appears that in order to secure a conviction they would have to wait until the person has actually entered the building and approached the counter. It is my opinion that this is ridiculous especially when public safety is concerned; clearly this was the case in Campbell. The dangers of this are seen in the case of R v Geddes where the defendant had been seen by a teacher in the boy’s toilets of a school, equipped with items to aid in the kidnapping of a child. Although convicted on his first trial, his appeal was allowed as there was no evidence of the actus reus of the offence and his actions had not been more than preparatory given that he had not made contact with any pupil. It is my opinion that Geddes was a very dangerous man and the potential damage he would have done had he succeeded would have been devastating to the victim. He had all of the mens rea to go through with his crime and in my opinion deserved to be punished just as much as if he had completed the offence.

In many cases the defendant has tried very hard to complete the offence and has only failed because of impossibility, carelessness or the interference of the police. One such example is R v Shivpuri where the defendant was paid to act as a drugs courier. On collecting a package of what he believed was either heroin or cannabis, the defendant was arrested by the police, the contents were later found not to be drugs but a harmless vegetable substance. He was convicted of an attempt and his appeal upheld, which in my opinion was the right decision. The acts were ...

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Lack of punishment for a genuine attempt to commit a criminal offence will in some cases give incentive and opportunity for the defendant to try harder to complete the offence in the future. One of the aims of punishing criminals is retribution; to prevent repeat offenders. This role of sentencing will both benefit people who have committed an attempt or those with only the mens rea of the offence and have not gone far enough for the actions to be seen as more than preparatory.

The question of whether an act is “more than merely preparatory” is a matter of fact and, in a trial on indictment, will be for the jury to decide. It seems that for some crimes, the defendant must go much further to completion of the act than for others and I believe that this needs clarifying in order to make the law fairer. For example Geddes, a man who was found in the boys’ toilets equipped with a knife, tape and rope was found to have not committed attempted false imprisonment yet, R v Tosti and White who like Geddes were only found with the equipment needed to commit their crime of Burglary were found guilty.

In committing an attempt the defendant has the mens rea for the complete offence and may be equally as dangerous. The academic Becker (1974) argues that whether an offence is actually committed or merely attempted, the same type of harm can be caused: disruption and social stability. One such example is in R v Gullefer where the defendant seeing that the dog that he had backed at the greyhound race was losing, jumped onto the race track and attempted to disrupt the race to force a “no race” where he could claim back his money. In this case the defendant cased a lot of disruption and had the mens rea and the intention to claim back the money he had put on the dog. He had however not done anything towards the offence that he was charged with; theft, which is the unlawful appropriation of goods belonging to another with the intention to permanently deprive.

There is however opposition to this view, one such opponent is academic James Brady who has suggested that the harm is not the same and so it does not justify the same sentence. One solution to this would be to adapt a system like in some stated in America where, unlike in the UK where the maximum sentence for an attempt is usually the same as for the main offence, the maximum is only half that for the main offence. It is however my opinion that there is no real need for this given that in the UK the judge has discretion towards the sentence he gives and therefore the punishment can be suited to the crime. Most the time judges choose to impose lower sentences if the offence was not completed. I believe that greater clarity on the sentencing of such cases would prevent judges from sentencing based on the individual merits of the case and the punishment would not necessarily be suited to the defendant making them more likely to reoffend.

Prison and other forms of punishment cost the tax payer money and where no harm has been done it is questionable of whether this is a worthwhile use of resources. This same argument can be used against even prosecuting such offenders due to the cost of taking the offender to court, questioning whether the defence should even exist for minor offences. A key example where resources been wasted is in the case of Anderton v Rhyan where the defendant had bought a video recorder and later confessed to the police that she had believed it to be stolen when she bought it. The video recorder was in fact not stolen however she was charged with attempting to handle stolen goods and was later acquitted.

Before the criminal attempts act 1981, impossibility was a defence to a charge of attempts. This change in the law has been a change towards the view in the question that A person who genuinely attempts to commit a criminal offence and fails still deserves to be punished just as much as a person who succeeds in committing an offence. A person that genuinely tries to commit a crime but cant because of impossibility is still just as immoral as if he had succeeded. For example if a person reached into someone’s bag with the intention to steal a purse but found no purse in there in my opinion is still morally wrong but pre Criminal Attempts act they would not have been found guilty. This has however proven confusing as shown in the above case of Anderton v Rhyan where in quashing her conviction the House of Lords has seemingly rendered impossibility as a defence despite the apparently clear wording of the act. However, the House of Lords have since overruled their own decision in Shivpori where the defendant was arrested by customs officers and confessed that there was heroin in his luggage, however it was found that the substance was only vegetable leaves yet he was still convicted of an attempt. Now the only case in which impossibility can be a defence is if ther accused attempts to commit what they think is an offence, but which is actually not against the law such as in Taaffe.

In conclusion I agree with the view in the question to a large extent. A person who genuinely attempts to commit a criminal offence and fails still deserves to be punished just as much as a person who succeeds in committing an offence. A defendant who has committed an attempt is still morally wrong and possibly just as dangerous as if they had managed to complete the offence. I believe that the current position of the law in England on the sentencing of attempts for most cases sufficient however there should be a clearer line drawn between what is preparatory and what the part of the crime. The offender should face the maximum sentence for the completed offence and a judge should decide based on the merits of the case, the sentence appropriate for that defendant.