Introduction
The law of criminal attempts seeks to impose liability on individuals who try, but fail, to commit a substantive criminal offence. A central challenge in this area of law is determining the point at which a person’s conduct moves beyond simple preparation and becomes a criminal attempt. The actus reus of an attempt is defined in England and Wales by section 1(1) of the Criminal Attempts Act 1981, which requires the defendant to have done an act that is “more than merely preparatory” to the commission of the intended offence. This essay will explain what this phrase means by examining the legislative context and its interpretation by the judiciary. It will then critically evaluate the test, arguing that while the 1981 Act sought to provide clarity, the phrase “more than merely preparatory” has created significant uncertainty, leading to inconsistent case law that struggles to draw a coherent line between blameworthy conduct and mere preparation.
The Criminal Attempts Act 1981 and the Statutory Test
Prior to 1981, the law on attempts was governed by the common law, which was beset by a number of confusing and conflicting tests. These included the ‘proximity’ test, which considered how close the defendant was to completing the offence, and the ‘last act’ test, which required the defendant to have performed the final act they believed necessary to commit the crime (Garland, 2011). The Law Commission, in its report on criminal attempts, criticised the common law for its lack of a clear principle and recommended a new statutory formula (Law Commission, 1980).
The resulting Criminal Attempts Act 1981 (CAA 1981) abolished the common law offence of attempt and replaced it with a new statutory offence. Section 1(1) of the Act states:
> "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."
This provision codifies both the mens rea (intent to commit the full offence) and the actus reus (an act which is “more than merely preparatory”). The Act intended to create a single, clear test for the conduct element of an attempt. However, the legislation does not define what “more than merely preparatory” means, leaving this crucial task to the courts. The statute effectively frames the issue as a question of fact for the jury to decide in each case, based on the evidence presented and the directions from the judge.
Judicial Interpretation: The Search for a Dividing Line
The judicial interpretation of “more than merely preparatory” has been inconsistent, leading to a body of case law that is difficult to reconcile. The central question for the courts has been to identify the dividing line between acts of preparation (which are not criminal) and acts that constitute the beginning of the commission of the crime itself.
A key early authority is R v Gullefer [1990] 1 WLR 1063. The defendant jumped onto a greyhound racetrack to disrupt a race, hoping it would be declared void so he could recover the money he had staked. The Court of Appeal quashed his conviction for attempted theft. Lord Lane CJ provided an influential interpretation of the 1981 Act, stating that an attempt begins when the defendant “embarks on the crime proper”. This formulation suggests that the defendant’s actions must have moved beyond the preparatory stage and become part of the actual execution of the offence. In Gullefer, the court found the defendant had not even begun to attempt to get his money back; he had only created the conditions in which he might do so.
This approach, which places the line of liability quite late in the sequence of events, was followed in R v Campbell [1991] 93 Cr App R 350. Here, the defendant was arrested about a yard from the entrance of a post office. He was carrying an imitation firearm and a threatening note he intended to use in a robbery. His conviction for attempted robbery was quashed on the basis that he had not yet entered the post office or made any contact with staff. His actions, while highly suspicious and clearly demonstrating his criminal intent, were held to be merely preparatory. He had not yet “embarked on the crime proper”.
The case of R v Geddes [1996] Crim LR 894 further illustrates this narrow interpretation. The defendant was discovered in a boys' toilet block at a school, equipped with a knife, rope, and masking tape. He was charged with attempted false imprisonment. His conviction was quashed because he had not made any contact with a potential victim. The court reasoned that he had prepared to commit the offence but had not actually started to implement it. Lord Bingham CJ distinguished between “getting ready to commit the offence” and “actually trying to commit it”.
However, other cases have adopted a broader interpretation, finding liability at an earlier stage. In R v Boyle and Boyle (1987) 84 Cr App R 270, two defendants were found by a house, having broken a lock and a hinge on the door. Their conviction for attempted burglary was upheld. The court held that their act of breaking the lock was more than merely preparatory, as it was the beginning of the entry into the building. Similarly, in R v Jones (Kenneth) [1990] 1 WLR 1057, the defendant bought a shotgun, shortened the barrel, put on a disguise, and got into the victim's car. He pointed the gun at the victim, who managed to escape. The court upheld his conviction for attempted murder, stating that once he had got into the car and pointed the gun, he had “embarked upon the commission of the offence”.
The tension between these lines of authority is evident in R v Tosti [1997] Crim LR 746. The defendants were seen examining the padlock on a barn they intended to burgle. They had cutting equipment with them and had hidden it in a nearby hedge before being disturbed. The Court of Appeal upheld their convictions for attempted burglary, holding that their actions went beyond mere preparation. This decision seems difficult to reconcile with Campbell and Geddes, where the defendants were arguably just as close to committing their intended crimes.
A Critical Evaluation of the Test
The primary criticism of the “more than merely preparatory” test is its inherent vagueness, which has resulted in uncertainty and inconsistency in its application. The phrase itself is a negative definition; it tells us what an attempt is not (merely preparatory), but provides no positive guidance on what it is (Simester and Sullivan, 2019). The judicial gloss provided in Gullefer – that the defendant must have “embarked on the crime proper” – simply replaces one vague phrase with another. It does not provide a clear principle for distinguishing between preparation and commission. As a result, the outcome of cases often appears to depend on the specific facts and the inclination of the particular court, rather than on a consistent legal rule. This creates a "lottery" for defendants and makes it difficult for legal advisors to predict outcomes (Clarkson and Keating, 2017).
Furthermore, the test arguably fails to adequately balance the competing policy objectives of the law of attempts. On one hand, the law should allow for police intervention before a crime is completed and an individual is harmed. The decisions in Geddes and Campbell suggest that the current interpretation may set the threshold for liability too high, forcing law enforcement to wait until the defendant is at the very threshold of committing the offence, by which point it may be too late to prevent harm. A person found lurking in a school toilet with a knife and rope, as in Geddes, clearly poses a significant danger to the public, yet under the current law, may escape liability for an attempt.
On the other hand, the law must avoid punishing individuals for actions that are equivocal or who might have voluntarily abandoned their criminal plan. A test that imposes liability too early risks criminalising people for thoughts and preparations that never translate into a concrete attempt. The “more than merely preparatory” test, particularly as interpreted in cases like Geddes, prioritises the avoidance of wrongful convictions over the prevention of harm. While this is a laudable aim in criminal justice, it is questionable whether the balance has been struck correctly.
Finally, by making the issue a question of fact for the jury, the 1981 Act contributes to the lack of legal certainty. While juries may bring a common-sense perspective, they are not bound by precedent, which can lead to different juries reaching opposite conclusions on similar sets of facts. This undermines the principle of legal certainty, which requires that the law be predictable and consistently applied.
Conclusion
In conclusion, the phrase “more than merely preparatory” was introduced by the Criminal Attempts Act 1981 to provide a clear statutory test for the actus reus of an attempt, replacing the confusing common law. While the intention was to bring clarity, the test has proven to be vague and difficult to apply in practice. The judiciary has attempted to provide guidance, most notably with the "embarks on the crime proper" formula from Gullefer, but this has not resolved the fundamental ambiguity. The resulting case law is inconsistent, with cases like Geddes taking a very restrictive view of when an attempt begins, while others like Tosti appear more willing to find liability at an earlier stage. This uncertainty undermines legal certainty and arguably fails to strike the right balance between preventing harm and avoiding the premature criminalisation of preparatory conduct. The test correctly identifies the problem as one of line-drawing, but it fails to provide a principled basis for where that line should be drawn, leaving the law in a state of some confusion.
References
- Clarkson, C.M.V. and Keating, H.M. (2017) Clarkson and Keating: Criminal Law: Text and Materials. 9th edn. Sweet & Maxwell.
- Criminal Attempts Act 1981, c. 47.
- Garland, F. (2011) ‘The Actus Reus in Criminal Attempts: The Case for a "Substantial Step" Approach in England and Wales’, The Journal of Criminal Law, 75(2), pp. 114-130.
- Law Commission (1980) Attempt, and Impossibility in Relation to Attempt, Conspiracy and Incitement (Law Com No 102). HMSO.
- R v Boyle and Boyle (1987) 84 Cr App R 270.
- R v Campbell [1991] 93 Cr App R 350.
- R v Geddes [1996] Crim LR 894.
- R v Gullefer [1990] 1 WLR 1063.
- R v Jones (Kenneth) [1990] 1 WLR 1057.
- R v Tosti [1997] Crim LR 746.
- Simester, A.P., and Sullivan, G.R. (2019) Simester and Sullivan's Criminal Law: Theory and Doctrine. 7th edn. Hart Publishing.
