Criminal Attempts Act of 1981 - Essay Example

The Criminal Attempts Act 1981 came into force on 27 August 1981 as stipulated at section 11 of the 1981 Act. The Act received Royal Assent on the27th July 1981 but section 11(1) states that (1) This Act shall come into force at the expiry of the period of one month beginning with the day on which it is passed. In proving criminal attempt the court will look for evidence of the intention of the accused to commit the offence, acts carried out by the accused to assist in the offence being carried out and that their attempt at committing the offence was almost complete. The courts will not accept ‘mere preparation’ as proof of a criminal attempt, although it would be expected for a degree of preparation to be undertaken by the accused in readiness for the commission of the offence. In cases were there is evidence of preparation immediately before the commission of the offence this will be regarded as criminal preparation. The fault element of criminal attempt is the conditional intention of the accused. The recklessness of the accused can also be used to infer participation in the offence. This might occur where the accused does not believe that the offence will be committed but becomes involved in acts that aid the commission of the offence. In some cases the court will require the prosecution to prove that the accused had knowledge of the crime that was about to be committed. The courts will also examine the circumstances under which the accused became involved with the commission of the offence to determine their level of culpability. In some instances the courts have found an accused guilty of an attempt to commit a crime when the involvement of the accused is in omitting to do something. This might occur in the case of a murder where the accused is not directly involved in the attack on the individual but fails to do anything to prevent the attack on the victim and does not seek to assist the victim in anyway even by merely calling the police. Section 1(1) of the Criminal Attempts Act 1981 states (1) 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 courts might have difficulty firstly in determining the intent of the accused to commit an offence as this might not always be obvious from the actions of the accused. The courts are also likely to have trouble defining whether the act is merely preparatory. As mentioned above, in all attempts to commit a crime there is likely to be an element of preparation. According to Hart (1983) ‘An action is a criminal attempt (and not mere preparation) if and only if: 1) the agent in question would consider his action a failure if it were interrupted, prevented from running its intended course, or did not achieve its intended result; and 2) the successful completion of that action would constitute a crime.’ The Act itself does not sufficiently assist in defining intention or merely preparatory acts and therefore it is open to the courts to interpret this as they see fit. In a Law Commission report published in 1980 before the introduction of the Act the Commission stated that the common law was inadequate in dealing with criminal attempts as the test applied was the ‘last act’ test. The Law Commission in their report stated that this fixed the point of intervention for criminal liability too late. The paper suggested that the correct test should be in proving that the accused has taken a ‘substantial step’ towards the commission of the offence. This principle was enshrined into the 1981 Act which means that the criminal law can deal with attempts at a much earlier stage. The insertion of s11(2) into the 1981Act has the effect of allowing someone who is in one of the armed forces to be prosecuted either in the criminal courts or the military tribunal depending on the crime committed. The decision as to which court this will be heard in is dependant on the public interest test. Intrinsic aids are designed to help the court understand the construction of the statute. In some cases the courts will utilize the long title of the particular Act as an intrinsic aid to interpretation as was the case in Royal College of Nursing v DHSS. The preamble to the Act is also regarded as an intrinsic aid and can be used for interpretation. Schedules at the end of the Acts are often very useful in expanding on the interpretation of a statute and the use of punctuation in the Acts can also assist in interpreting the meaning of a statute. The title R v Campbell [1991] 93 Cr App R 350 tells the person about to read the case that this is a criminal appeal report. This is therefore a review of an earlier decision. The defendant is Campbell and he is appealing against the decision of the crown prosecution case against him. The appeal court has a civil and criminal division. The criminal division is only allowed to hear appeals from the Crown Court connected with a trial by judge and jury. The decisions of the court of appeal are binding on all courts except for the House of Lords. The High Court of Justice can function as a court of appeal for criminal cases. The case of R v Campbell 1991 concerned an accused who had been convicted of attempted robbery after the police caught the accused arriving at the post office on a motorcycle and carrying some heavy object in the vicinity of the post office the police had been warned was about to be robbed. Initially the motorcyclist walked away from the scene but was arrested when he returned to the scene 30 minutes later. When searched an imitation gun and a threatening note was found in the possession of the accused. The accused admitted that the note was meant to frighten the post office staff but that when he had returned to the post office he had decided not to rob the place after all. The accused stated that if he had not been stopped he would have driven off on his motorcycle. The accused appealed against his conviction on the grounds that the judge should not have rejected the submission of no case to answer coupled with the direction given by the judge in relation to the law before the passing of the 1981 Act. The appeal was allowed and the conviction of the accused was quashed. The legal issues that were raised in this case were in proving that the accused was in the process of attempting to rob the post office at the time of his arrest. The judge had been wrong to instruct the jury to consider the ‘last act’ test from the common law position of criminal attempts as this had been repealed by the introduction of the 1981 Act. The ratio decidendi of a case is a point raised in the case that determines the outcome or judgment or the principle that is established by the case itself. The ratio decidendi in the decision of R v Campbell wads in determining the time when the preparatory act came to an end. Under the Criminal Attempts Act 1981 the actions of the accused would have been regarded as insufficient to prove that his actions went beyond mere preparatory acts. By referring to the common law the jury was able to convict the accused on the premise that his actions were sufficient for the jury to be sure that the accused intended to commit the robbery. In reaching his decision to quash the original conviction the judge examined the Criminal Attempts Act 1981 s1 and s4(3) to determine whether the actions of the accused were sufficient to allow the court to find that the acts of the accused had been more than merely preparatory. In his consideration he looked at the case of DPP v Stonehouse and the speech of Lord Diplock who stated ‘The constituent elements of the inchoate crime of an attempt are a physical act by the offender sufficiently proximate to the complete offence and an intention on the part of the offender to commit the complete offence. Acts that are merely preparatory in the commission of the offence such as, in the instant case, the taking out of the insurance policies 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’. He also looked at the judgment in Eagleton [1855] Dears CC 515 in which the judge stated that ‘The mere intention to commit a misdemeanour is not criminal, some act is required; and we do not think that all acts towards committing a misdemeanour 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’. Many judges have followed the decision in Eagleton including Lord Diplock in Gullefer (note) (1990) 91 CR App R 356. Stephen’s Digest of the Criminal Law (1894) has also endorsed Eagleton stating 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 if it were not interrupted.’ In the judge’s reasoning in Campbell he refers to the case of R v Jones (1990) stating that the judge in Campbell had made a mistake by not sticking to the definition of criminal attempts as defined within the Act itself. The judge felt that the Act was sufficient in determining whether the actions of the defendant had gone beyond preparatory and that there was sufficient explanation available within the Act for the jury to be able to decide whether the actions of the accused were more than preparatory. In determining the meaning of the statute the judge at the appeal court adopted the literal meaning of the Act holding that a mere preparatory act had to go beyond the presence of the accused in the vicinity of the area. The judge felt that since the accused had nit entered the post office at any point in time that it would be difficult to presume that the accused at all times had the intention of committing the robbery. Had the accused attempted to enter the post office it would be right for the court to assume that the act was more than preparatory as the accused was in the position where he was able to carry out his intentions if he so wished. Lord Chief Justice is the head of the judiciary of England and Wales and the presiding judge in the court of appeal criminal division. In the judgment reference is made to the Lord Chief Justice Lord Lane in the case of R v Gullefer [1990] 1 WLR 1063 as well as Lord Chief Justice Lord Diplock in the Eagleton case mentioned above. The present Lord Chief Justice is Lord Phillips of Worth Matravers. The role of the prosecutor is to determine the charge that the accused will be charged with. This charging advice is then delivered to the police officers and advice is give to the officers regarding any further investigative work that ought to be conducted including the taking of witness statements or sending off samples obtained from a scene for analysis and comparison. When cases are presented by the police to the prosecutor it is then his duty to review the case and further advise wherever necessary. Prosecutors have to oversee the preparation of cases in readiness for the presentation of the evidence at court. It is the remit of the prosecution service to ensure that all cases are prosecuted fairly, effectively and firmly. The prosecutor in deciding on what to charge the accused has to be sure that there is sufficient evidence to prosecute the accused by determining the prospect of winning or losing the case in court. The prosecutor also has to bear in mind the public interest factor. If there were several members of the public in the vicinity of the fight who might have been alarmed by the attack there is a greater likelihood of prosecution being in the best interests of the public. In deciding on the appropriate charges the crown prosecutor will refer to the Code for Crown Prosecutors. This document instructs the prosecutor on their powers to deal with the case before them and sets out the proscribed manner for dealing with charging advice etc. Each case has to be considered on its own merits and the Code requires that prosecutors are fair, independent and objective. Personal views are not allowed to influence the decision the prosecutor such as the age, sexual orientation and origin. One of the stated aims of the Code is that It is their duty to make sure that the right person is prosecuted for the right offence. In doing so, Crown Prosecutors must always act in the interests of justice and not only for the purpose of obtaining a conviction. Prosecutors have a duty to consider the alternatives to prosecution; this applies to adult defendants as well as juveniles. Assessment of the evidence is crucial and the case must be reviewed on a regular basis until the time of the trial. In the final scenario the police are likely to believe that his actions are more than preparatory as he has approached the bar. Although Adnan could rely on the case of Campbell above to argue that he was not going to commit the crime, the fact that he approached the bar distinguishes this case from Campbell above and it is therefore likely that he would be regarded as attempting to commit the offence. The question of whether the defendant’s action were more than merely preparatory was addressed in the case of R v Jones [2007] EWCA Crim 118 in which the court held that the defendant had the objective and the intention of inciting a particular child to engage in penetrative sexual activity, his intention was to evade the prohibition of the law, and his acts were more than merely preparatory to commission of the offence. The defendant argued that because the police had substituted an adult for a child he could use this as a defence in law. The court stated that the defendant had specifically asked the undercover officer, who he believed to be a child, for her age. The court stated it was not improper for the officer to pretend to be 12 and to tell the defendant this. The court stated that regardless of the age of the undercover officer the defendant believed the girl to be under 13 and was therefore guilty of encouraging a child to partake of penetrative sex with him. A similar decision was reached in the case of R v MH [2004] EWCA 1468 in which the court stated that all that was required was evidence from which a jury could infer the necessary intent, and that the acts were more than merely preparatory. It was stated that in this case the judge was right to let the jury decide and that it was right also to entitle the jury to consider what H had said to W, the struggle and the removal of her clothes as going beyond mere preparation. Using both of the above as guidelines for deciding whether Adnan should be charged it is obvious that if the courts are able to infer from his actions that the things he was doing should be regarded as more than mere preparation then he is likely to be found guilty. 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