Discuss the potential criminal liability that Brain might face. Would your answer be any different if (a) the canister contained highly flammable material rather than weed killer? (b) Brian gave up the enterprise when he heard a noise?

Brian, once deciding that he was going to destroy the marrows, took the first step in commissioning the crime; he filled the canister with weed killer in the full belief and knowledge that this chemical would kill the marrows.  s1 (1) of the CAA requires Brian to act in a way that is ‘more than merely preparatory’. The key word is ‘merely’ here, as the case law indicates that not every preparatory act can be read as an attempt. In Eagleton it was said that;

‘Some act is required and we do not think that all acts towards committing a [criminal offence] are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are’ 

The court could adopt one of two possible approaches; a fault-centred approach whereby the only necessary proof is Brian’s intention combined with a definite act to bring about the crime or the act-centred approach, in which case only unambiguous acts very close to the substantive crime would render Brian liable. The latter is the preferred and most commonly seen approach, which would allow Brian an opportunity to withdraw from actually committing the crime. For example in Geddes, a controversial case of attempted false imprisonment, Lord Bingham CJ said;

“The line of demarcation between acts which are merely preparatory and acts which may amount to an attempt is not always clear or easy to recognise. There is no rule of thumb test. There must always be an exercise of judgment based on the particular facts of the case. It is, we think, an accurate paraphrase of the statutory test and not an illegitimate gloss upon it to ask whether the available evidence, if accepted, could show that D has done an act which shows that he has actually tried to commit the offence in question, or, whether he has only got himself in a position or equipped himself to do so.”

Brian was equipped with weed killer and in position when he took the next step and arrived at what he thought was Victor’s home. The fact that he watched the house from across the road is certainly indicative of his determination to commit the offence, however, this act in itself may still be insufficient to determine guilt. In Campbell  the defendant was arrested in front of a post office wearing a helmet, carrying an imitation gun and a threatening note. He had approached to within a few yards of the post office door. Watkins LJ stated there were too many acts left undone and those that had been done were ‘indicative’ of mere preparation. CA held that a person cannot be convicted of an attempt when he ‘has not even gained the place where he could be in a position to carry out the offence’.

The proximity test may be applied to Brian’s interrupted attempt to enter the garden by trying the lock on the side gate. Brian withdrew from his plan when he heard a noise and he had not gained entry into the garden. The CA in Widdowson confirmed Lord Diplock’s ‘Rubicon’ test set out in Stonehouse as representing the law under the CAA. Lord Diplock had said;

‘Acts that are merely preparatory to the commission of the offence…. are not sufficiently proximate to constitute an attempt. They do not indicate a fixed irrevocable intention to go on to commit the complete offence unless involuntarily prevented from doing so… [D] …must have crossed the Rubicon and burnt his boats’.

Brian at this stage had not necessarily burnt his bridges. He still had the opportunity not to go through with the crime. It is at this point however, that Brian’s actions were becoming closer to the actual crime and could now be subject to the ‘series of acts’ test, leading to an increasingly likely potential of conviction. This test was referred to by the CA in Boyle v Boyle  where the defendants were convicted of attempted burglary after being found by a door with a broken lock. It 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 were it not interrupted.’

Lord Lane in Gullefer drew the elements of the proximity, Rubicon and series of acts tests together. According to this test Brian would have been deemed to have committed an attempt when he had ‘embarked on the crime proper’. Lord Lane said;

“The words of the Act seek to steer a midway course. They do not provide….that the Eagleton test is to be followed, or that.. [D]…must have reached a point from which it was impossible for him to retreat before the actus reus of an attempt is provided. On the other hand, the words give perhaps as clear a guidance as is possible in the circumstances on the point of time at which Stephen’s “series of acts” begins. It begins when the merely preparatory acts have come to an end and [D] embarks upon the crime proper. When that is will depend of course upon the facts in any particular case”

The question as to when Brian actually ‘embarked on the crime proper’ is a matter for the jury based on the facts of the case. In Totsi and White the defendants drove to a barn which they planned to burgle with oxy-acetylene equipment, hid the equipment in a hedge, and ran off when they were interrupted. CA following Geddes upheld their convictions of attempted burglary. Beldam LJ in finding sufficient evidence that they were trying to commit the crime said that the question was whether they;

‘had committed acts which were preparatory, but not merely so – so that it could be said the acts of preparation amounted to acts done in the commission of the offence. Essentially the question is one of degree; how close to , and necessary for, the commission of the offences were the acts which it was proved that they had done’.

The fact that Brian was at the wrong house would not affect the outcome, even though it would have been impossible for Brian to attempt to commission the crime if he were at the wrong address. Following Shivpuri impossibility is no defence to attempt. In Shivpuri, the defendant thought he had handled packs of heroin which turned out to be snuff but was nonetheless convicted of attempt by virtue of the fact that he believed he was committing a crime and intended to do so. Lord Bridge in this case introduced the concept of ‘objective innocence’ and said; ‘what turns what would otherwise….be an innocent act into a crime is the intent of the actor to commit an offence.’ It was held that a defendant can be guilty of an attempt even though commission of the full crime would have been impossible.  On this basis, Brian should be judged by what he intended, believed and tried to do. Similarly, the fact that Brian threw the canister at the marrows in the trailer instead of on Victor’s premises as planned will not affect the outcome, since the primary intention was destruction of the marrows, regardless of setting.

Brian upon seeing Victor on the road proceeded to throw the canister at the marrows. In so doing, he had undertaken the last act. This is classed as a complete attempt, which would render Brian liable for the offence and make conviction a likely outcome. Mens rea and actus rea have now both been satisfied and Brian does not appear to have any defence. There may be a problem with evidence if Victor was not aware of anything being thrown at him and if, for example he did not see Brian. The prosecution would have to prove that Brian committed this attempt, particularly as there was no actual damage to the marrows and no substantive crime.

Part 1a

If Brian had filled the canister with highly flammable material rather than weed killer, he could be liable under s1 (1) of the CAA for an attempt to cause criminal damage by fire or arson with recklessness as to whether life would be endangered by his act. Although as illustrated above, attempt is a crime of specific intent, it is possible for Brian to be convicted of attempt even though he was only reckless with regards to some of the elements of his actus reus. Pearman above defines intention in relation to attempts and this is governed by Woollin, which extended intention to include foresight and virtual certainty.  

This is a difficult area of law which was clarified in Attorney-General’s Reference (No 3 of 1992). Here a petrol bomb was thrown from a moving car, narrowly missing a parked car containing four passengers, with two pedestrians nearby. The defendants were charged with aggravated arson, as the criminal damage was intentional, and they were found to have been reckless with regard to endangering life. The CA held that it was enough that the defendants intended to damage property, being reckless as to whether life would be endangered. See also Khan which is a case involving attempted rape. The judge had directed the jury that it was only necessary to prove the defendants had intended to have sex with a young girl, knowing the girl was not consenting. Their convictions were upheld and recklessness with regard to whether or not she was consenting was held to be sufficient mens rea for the offence.

The prosecution therefore, would not necessarily need to prove that Brian intended to endanger life; merely that he was reckless as to the consequences of his actions in throwing highly flammable material onto the marrows. The jury would have to determine if by attempting to damage property by fire, it is foreseeable or virtually certain that life would be endangered.

It is not clear what kind of bike Victor was riding from the problem. As Victor was in control of a moving vehicle (of any sort) a fire on his trailer could endanger his (or another road users) life in more ways than one. If he was riding a moped or a motorbike the potential of endangering life through explosion is a real one.

Brian had mens rea in terms of his intention to damage the marrows and a strong case for actus reus could be made out when Brian committed the last act. Therefore it is highly likely that he would be held liable for this offence. Again, it would be left open to the jury to apply the tests and make a decision based on the facts of the case.

Part 1b

In this scenario, it is clear that Brian sets out with the intention to commit a substantive offence. On balance, it would be very difficult to determine beyond all reasonable doubt that Brian gave up the enterprise because he was interrupted rather than because he changed his mind.

Whether or not Brian would be held liable for attempt at the point at which he gave up, having heard a noise, is questionable. The evidence here would not be as convincing as in part 1; where Brian had done everything he possibly could to supply the missing element of the crime. The question asked above by Bedlam LJ in Totsi may be relevant here, that is; ‘how close to, and necessary for, the commission of the offences were the acts which it is proved that they had done?’  

The job of the jury therefore, would be to determine ‘if’ or ‘when’, Brian crossed the Rubicon and burnt his bridges (assuming the judge leaves the decision to them), i.e. moving from merely preparatory to preparatory, or ‘having embarked on the job proper. (see discussion in part 1) It is not clear how the jury, faced with the acts so far – filling the canister, going to Victor’s house, watching the house, approaching the gate and trying the lock – would decide. The jury has the task of not only declaring the law, but in this case, determining what the law is by defining the meaning of ‘more than merely preparatory’. There is on this basis, a wide margin of discretion, and potential for inconsistent verdicts. If the decision in Campbell were followed, Brian would be acquitted. If however, Totsi were applied, Brian would face conviction.

Brian having abandoned the commission of the crime may be treated more leniently, however, no case law has yet accepted abandonment as a defence to attempt. The view that may be taken here is that the law has not failed as a deterrent until Brian has taken the last act, and that he should be given a second chance and incentive for reform, however the counterargument is that there is no moral difference between complete or incomplete attempts and that the law should not ‘subordinate itself to the vagaries of fortune by focusing on results instead of culpability.’ These opposing positions with regard to liability for attempt serve to further illustrate the point above that Brian’s liability would come down to a question of subjective opinion formulated by the jury, based on the facts of the case.

Bibliography

Books

Allen, M Textbook on Criminal Law (8thed. Oxford University Press 2005)

Ashworth, A Principles of Criminal Law (4thed. Oxford University Press 2003)

Baird, N Criminal Law Questions & Answers series, (5thed Cavendish Publishing, 2005)

Herring, J Criminal Law, Text, Cases and Materials (Oxford University Press, 2004)

Martin, J & Storey, T Unlocking Criminal Law (Hodder & Stoughton 2004)

Articles

Arenson, KJ The pitfalls in the law of attempt; a new perspective J.Crim.L. 2005 69(2) 146-167

The Law Commission Report on Attempt and Impossibility; (1) ‘The Elements of Attempt (Dennis) and (2) Questions of Impossibility (Cohen)’  [1980] Crim. LR 758, 773

Smith,KJM An Objectivist’s Account of Criminal Attempts (1998) 62 MLR 438

Stannard, JE Making up for the missing element – a sidways look at attempts (1987)7 LS 194

Tufal, A Preliminary Crimes   06/11/05

 Websites

Authorities

The Draft Criminal Code (1989), cl 49(1)

The Law Commission Report;  “Attempt and Impossibility in Relation to Attempt, Conspiracy and Incitement” Law Commission 102 (1980)

Table of Cases

Attorney-General’s Reference (No1 of 1992) 2 All ER 190

Attorney-General’s Reference (No 3 of 1992) [1994] 2 All ER 121

Boyle v Boyle [1987] Crim LR 111

Campbell [1991] Crim LR 268

DPP v Stonehouse [1978] AC 55

Eagleton (1885) Dears 515

Geddes [1996] Crim LR 894

Gullefer [1990] 3 All ER 882

Jones [1990] 3 All ER 886

Khan [1990] 2 All ER 783

Mohan [1975] 2 All ER 193 C/A

Nash [1998] EWCA Crim 2392; [1999] Crim LR 3

Nedrick [1986] 3 All ER 1

Pearman (1984) 80 Cr App R 259

Shivpuri [1987] AC 1

Toothill [1998] Crim LR 876

Totsie and White [1997] EWCA Crim 222; [1997] Crim LR 746

Walker and Hayles [1990] Crim LR 44

Whybrow (1951) 35 Cr App R 141

Widdowson (1986) 82 Cr App R 314

Woollin [1998] 3 WLR 382

Table of Statutes

Criminal Attempts Act 1981

Criminal Damage Act 1971

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