Preliminary Offences

Preliminary offences are crimes that occur before the commission of the main offence. They serve to criminalise conduct that is dangerously close to causing harm, even if the intended crime is not completed. One of the most significant preliminary offences in English criminal law is 'attempt'. An attempt is where a person tries to commit a crime but, for various reasons, fails to complete it. The law on attempts is mainly found in the Criminal Attempts Act 1981.

Understanding the actus reus (guilty act) and mens rea (guilty mind) of attempt, as well as the concepts of impossibility, is essential for success in A-Level Law examinations.

Actus Reus of Attempt

The actus reus of attempt requires an act that is 'more than merely preparatory' to the commission of the intended offence. This means the defendant must have gone beyond planning and preparation, and embarked upon committing the crime itself.

Definition: Section 1(1) of the Criminal Attempts Act 1981 states that a person is guilty of attempting to commit an offence if, with intent to commit that offence, they do an act which is more than merely preparatory to the commission of the offence.

• Key Case – R v Gullefer [1990]: The defendant tried to stop a dog race by jumping onto the track, hoping to reclaim his bet. The Court of Appeal held that acts are 'more than merely preparatory' when the defendant has embarked upon the crime proper, not just preparation.
• Key Case – R v Geddes [1996]: The defendant was found in a school toilet with a knife, tape, and rope. He had not yet confronted any pupils. The court decided he was still preparing, not attempting, as he had not moved from preparation to execution.

Application: Whether actions are 'more than merely preparatory' is a question for the jury. Courts consider the proximity of the defendant’s actions to the full offence.

Mens Rea of Attempt

The mens rea for attempt is generally a higher standard than for the completed offence. The defendant must intend to bring about the full offence, regardless of whether the completed offence requires only recklessness or some other mental state.

Required Mental State: The defendant must intend the result required for the full offence. Recklessness is not sufficient for attempt, except where recklessness is an element of the full offence.

• Key Case – R v Whybrow [1951]: The defendant wired up a soap dish to electrocute his wife. For attempted murder, the court held that the defendant must intend to kill, not just cause grievous bodily harm.

Conditional Intent: It is possible to be guilty of attempt even if the intent is conditional. For example, intending to steal if there is anything worth taking.

Impossibility in Attempts

Impossibility in the context of attempts concerns situations where the defendant tries to commit a crime that, for some reason, cannot be completed. The law distinguishes between factual impossibility and legal impossibility.

Explanation: Section 1(2) and 1(3) of the Criminal Attempts Act 1981 clarify that a person may be guilty of attempting to commit an offence even if the completion of the offence is impossible, provided they believed it was possible and intended to commit the crime.

Types:

• Factual impossibility
• Legal impossibility

Factual Impossibility

Factual impossibility arises when, unknown to the defendant, it is not possible to commit the offence due to the circumstances of the case. The law generally allows conviction for attempt in these cases.

Definition: The defendant thinks the crime is possible, but completion is prevented by a factual circumstance.

Example: Attempting to pick an empty pocket, believing there is something to steal.

• Key Case – R v Shivpuri [1986]: The defendant attempted to deal with what he believed to be illegal drugs, but the substance was harmless. The House of Lords held that factual impossibility is not a defence to attempt; conviction is possible if the defendant intended to commit the offence and believed it possible.

Legal Impossibility

Legal impossibility occurs when the act attempted, even if completed, would not constitute a crime. Traditionally, legal impossibility was a defence, but the law has evolved.

Definition: The defendant tries to commit an act they believe is criminal, but it is not actually prohibited by law.

Example: Attempting to smuggle goods that are not prohibited.

• Key Case – R v Taaffe [1984]: The defendant believed he was importing currency illegally, but there was no such offence. The court held that legal impossibility remains a defence; one cannot be convicted of attempting a non-existent crime.

Summary and Exam Tips

Attempt requires an act 'more than merely preparatory' and an intention to commit the full offence. Factual impossibility is not a defence, but legal impossibility may be.

Exam Tips:

• Always refer to statutory provisions, especially the Criminal Attempts Act 1981.
• Use key cases (e.g., Gullefer, Geddes, Whybrow, Shivpuri, Taaffe) to support your answers.
• Distinguish clearly between factual and legal impossibility in scenario questions.
• Be precise about the differences between preparation and attempt.
• Explain the required mens rea for attempt, especially for offences requiring intent vs. recklessness.