There were several issues under the common law such as impossibility, unclear
terminology of the actus reus, and uncertainty about the mens rea requirement. In the
case of Shivpuri (1987), a man was convicted of drug smuggling. The courts however
reasoned that all that was necessary was an act which was more than merely
preparatory to the commission of an offence, in which the defendant. Legal impossibility
is best exemplified in the case of Taaffe (1984) in which the defendant mistakenly
thought that importing currency was illegal. Although he possessed the intent and was
committing the actus reus he was found not guilty as there must be an illegal crime
behind the act for it to result in a conviction. An example of both a physical and a legal
impossibility lies in Haughton and Smith (1975), an undercover officer pretended to
deliver the stolen goods to a third party who was then charged with handling. Not only
was this a physical impossibility as it is impossible to handle stolen goods but also a
legally impossible crime to handle goods that are not stolen. Prior to the Act common
law did not acknowledge the fact that impossible crimes could nevertheless lead to a
defendant’s conviction. In Anderton v Ryan (1985), the defendant was charged with
handling stolen property in the form of a video recorder. She thought it to be stolen but
this could not be proven. Thus, in common law a person who does the actus resus of an
offence, with an intent to commit a specific crime which he believed to be possible is not
convictable. It seems strange that although the actus reus and the mens rea were
fulfilled that there was no crime simply because it could not be proven that the handled
item was stolen. However, the Criminal Attempts Act 1981 ‘attempted to create some
form of codified law which would guide and clarify, standardize and provide a level of
legal certainty where there was a lack of consistency. In fact there may be two distinct
areas of impossibility i.e legal impossibility as well as physical impossibility. Physical
impossibility refers where the defendant uses makes the crime not sufficient to produce
the desired result.
Section 1 of the Criminal Attempt Act 1981 defined the basic principle as a person may
commit the offence if he does an act which is ‘more that merely preparatory to the
commission. “More than merely preparatory” was in fact being hazardously close to the
completed act itself where it generated issues of proof regarding whether the defendant
had truly overstepped his legally permissible boundaries. In Gullefer (1990), a man had
betted on a losing greyhound race. He jumped on the racetrack hoping to distract the
dogs so that the race would be forfeited and his money would be returned. It was ruled
that this was not beyond the stage of preparation as he had not confronted the steward
and thus had not reached his convictable stage. However, the reliance on confrontation
and the blurry line between preparation and execution was precisely what the act had
sought to improve. The doing of an act which is more than merely preparatory to the
commission of the substantive offence, had something more than just preparation or
planning which is in fact the previous scope within the ‘last act’. This was to preluded in
the decision of Jones(1990) where “more than merely preparatory” was to have its
regular meaning and in no way implied by its ‘last act.’ In this case the defendant was
found to be guilty as he had pointed a loaded gun at the victim’s face with the intention
to kill him. It was no need to argue that he had at least three more subsequent acts
further to do: removing the safety catch, putting his finger on the trigger and pulling it.
Clearly the Criminal Attempts Act has helped establish that there be a wider idea of
attempt which would apply to a greater range of criminal preparations.
Having said that a more restrictive approach was adopted in Campbell (1991) and
Geddes (1996), where it limits the liability to situations where the defendant had tried
but failed to commit the offence. In Campbell (1991), the police found a man loitering
around the post office with the tools necessary for robbery. Upon conviction he had
claimed that he intended to rob the bank but had reconsidered. Similarly, in the case of
Geddes, the court ruled that because the act was no more than simple preparation it did
not qualify as “more than merely preparatory” since it demonstrates not only a
worrisome lack of security on the school’s part but a deliberate proximity which
transcends the mere preparation he undertook. If “more than merely preparatory” allows
criminals to lurk in bathrooms with children in the vicinity and go unpunished, in fact
there must be a loophole within the implication of the current law.
Another issue may be however on the conditional attempts, those in which the
defendant intends to commit the crime based on some circumstance that arises
“attempting to steal money from a purse” the criminal would have a better chance of
acquittal than if a charge was read.” When it comes down to it the man who is about to
attempt murder and reconsiders, the man who attempts and fails to murder, and he who
successfully murders are not seen in the same light by people and thus should be
distinguished between in law. Further proof that ‘more than merely preparatory’ is
unsatisfactory as an actus reus is evidenced in the fact that it applies to both possible
and impossible attempts. This situation is remedied by section 1(2) of the current Act
which proximate an impossible crime by providing additional room for improvement. In
Khan(1990) it was held, that the mens rea for attempted rape and rape had to
correspond and thus an intent to have sexual intercourse and recklessness as to
whether the victim consented enough to justify conviction. Attorney-General’s
Reference (No 3 of 1992) (1994), it was prescribed that to ascertain the mental
requirement for an attempted offence, it was necessary to look at the mental element of
the full offence.
Indeed, the Law Commission itself has lamented the fact that the ‘more than merely
preparatory’ test is too vague and uncertain. This might be a issue related to the current
being too narrow in cases such as preparation. Thereby there’re ideas to separate the
crime of attempt into two distinct offences. However, Rogers states that “if there were
two auxiliary concepts, then one offence, preparation could reflect the law’s
condemnation of a defendant’s commitment to offend while the other offence, attempts
could reflect legal condemnation of the danger the defendant has outwardly created.
Clarkson stated that the creation of ‘offences of attempt’ comes too near to the ‘last act’
idea and would therefore be too narrow, making the decision in Jones (1990) wrong.
Secondly, the offence of preparation could lead to over criminalization as it could be
taken to attack preparation too early and lead to thought crimes, where it would not only
clog up the justice system with more amounts of cases but would also extend liability
beyond the limits of the Parliament. Thirdly, it might add a great deal of unnecessary
burden to the courts where there might be no clear enough distinction between the two
kinds of attempt and the need for interpretation would increase. Fourthly, he points out
that the Law Commission does not discuss the difference in liability for preparing to
attempt the impossible and does not distinguish between penalties for preparing and
attempting. Lastly, the law is not compassionate to those who reconsider their actions.
Somehow he wants to take into account the fact that dangerous conduct is contained in
mens rea and those who have dangerous intentions should have liability imposed.
Therefore, he says that as soon as there is a conduct, that the attempter becomes a
defendant and the threshold should be one of “vivid danger” of the relevant crime being
committed. A better method would perhaps involve what L.Turner referred to as
“unequivocally referable to the commission of the specific crime.” there would be little
doubt as to what the defendant was about to attempt and would not muddle the context
with the word ‘danger’
Despite the introduction of the Criminal Attempts Act 1981, the present law on the actus
reus of attempt is in need of revision. A reformulated definition would be much more
effective than the Law Commission’s proposal for reform. This revamped definition
needs to escape from the notion that the defendant should have embarked on the
commission of the offence in a confrontational way. It is imperative that this new
definition be supported by a clear list of examples of conduct constituting an attempt
and that the interpretation of this definition becomes a matter of law.