In English law, it is possible to be convicted of a crime even where the full actus reus of the crime has not been committed. These inchoate offences fall into three categories: incitement, conspiracy and attempts.
The reasoning behind their criminalization was summed up by Professor Andrew Ashworth in Principles of Criminal Law (Third edition) when he said, “...so long as it is accepted that the incomplete attempter has evinced a settled intention to continue, and to commit the substantive offence by doing some further acts, there is sufficient ground for criminalization.”
What Are Inchoate Offences?
Although it has long since fallen out of everyday use, the term “inchoate” means “incomplete” and simply refers to the preliminary nature of the crimes. Each of the three types of the offence is criminalized through a different act or portion of the common law. They are grouped together into this specific portion of English criminal law because as they are comparable in nature.
The Mens Rea of Attempt
The crime of attempt is found in section 1 of the Criminal Attempts Act 1981, which states that a person is guilty of attempting to commit an offence if he or she “does an act which is more than merely preparatory to the commission of” the offence in question, with the intention to commit the offence. The mens rea of criminal attempts is therefore intention to commit the offence in question.
The ruling in R v Mohan [1976] has clarified what is meant by “intent” in criminal attempt cases. In Mohan, the Court of Appeal rejected the standard idea of criminal intent by which a defendant can be said to have intended an outcome if he or she could reasonably foresee the outcome of their actions would be the commission of an offence.
Instead, the rule in Mohan is that criminal attempts require strict intent. James LJ stated that, “a decision to bring about, in so far as it lies within the accused's power, the commission of the offence which it is alleged the accused attempted to commit” was required for criminal attempt to be proved, “no matter whether the accused desired that consequence of his act or not.”
The result of Mohan is that crimes such as murder have a different actus reus for attempts than for the crime itself. A person can be convicted of murder, a common law offence, if they intended to kill or cause really serious harm to a person. However, because attempts require specific intent, a defendant must have intended only to kill in order to be convicted of attempted murder.
What Does More Than Merely Preparatory Mean?
In R v Jones [1990], the Court of Appeal was asked to consider the meaning of the words “more than merely preparatory” in the 1981 Act. In Jones, the court ruled that the statute does not limit liability for attempts to those who have undertaken all but the last act in a crime, as per the ruling in R v Eagleton (1855).
Instead of following Eagleton, the court ruled that the test of whether an act was more than merely preparatory was an objective one; which the Jury must decide on the facts of the case. As Taylor LJ said in his decision, “the question … was whether there was evidence from which a reasonable jury, properly directed, could conclude that the appellant had done acts which were more than merely preparatory”.
Each case of attempt must therefore rest on its own facts, and it will be for the Jury to determine whether the defendant has taken enough steps to have committed attempt rather than simply planned for the crime in question.
Attempt is one of three inchoate offences; which are incomplete offences recognised by English criminal law as being sufficiently against the public good to warrant criminalization in their own right. A person is guilty of attempt if, with the specific intention of committing a crime, he or she performs sufficient actions that a Jury will determine they have committed acts “more than merely preparatory” to crime itself.
References:
- Allen, M.J. and Cooper, S. (2006) Elliott & Wood's Cases and Materials on Criminal Law (Ninth edition) Sweet & Maxwell, London
- Martin, E.A. (2003) A Dictionary of Law (Fifth edition) Oxford University Press, Oxford
Zoe Kirk-Robinson - Zoë Kirk-Robinson is a freelance writer/artist specialising in legal writing, internet technology and creative writing. She holds a ...
Join the Conversation