Introduction
In the criminal law of England and Wales, an attempt to commit an offence is a crime in itself. It is an inchoate offence, meaning it is an offence which has not been completed. The law on criminal attempts is primarily governed by the Criminal Attempts Act 1981 (CAA 1981). Section 1(1) of the Act defines the actus reus of an attempt as a person doing "an act which is more than merely preparatory to the commission of the offence". This statutory formula replaced the various vague and often conflicting common law tests, such as the ‘proximity’ test, with the aim of introducing greater clarity and consistency. However, the interpretation of the phrase "more than merely preparatory" has proven to be a significant challenge for the courts. This essay will explain what is meant by this conduct requirement and critically evaluate its effectiveness. It will argue that while the CAA 1981 intended to provide a clear standard, the subsequent case law has created a degree of uncertainty, making it difficult to predict precisely when preparatory actions transform into a criminal attempt.
The Statutory Test and its Judicial Interpretation
The CAA 1981 was enacted following a Law Commission report which recommended a new statutory definition for the actus reus of attempt (Law Commission, 1980). The key provision is section 1(1), which 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 wording makes it clear that acts which are only preparatory are not sufficient to establish the actus reus. The defendant must have gone beyond the stage of preparation and begun to execute the crime itself. The question of whether an act is "more than merely preparatory" is a question of fact to be decided by the jury based on the specific circumstances of the case.
The courts have provided guidance on how to interpret this test. A leading authority is R v Gullefer (1990), where the defendant, in an attempt to have a greyhound race declared void so he could reclaim his stake, jumped onto the track and tried to distract the dogs. His conviction for attempting to steal was quashed. Lord Lane CJ provided a much-cited gloss on the statutory test, stating that an attempt begins when the defendant "embarks on the crime proper" (p. 1066). This phrase suggests a dividing line between getting ready to commit a crime and actually starting to commit it. The defendant in Gullefer had not yet approached the bookmaker to demand his money back, so he had not embarked on the crime of theft itself.
This "embarking on the crime proper" principle has been applied in subsequent cases, but with results that are not always easy to reconcile. In R v Jones (1990), the defendant bought a shotgun, shortened the barrel, put on a disguise, and went to the victim’s car. He then got into the back seat and pointed the loaded gun at the victim. The Court of Appeal held that these acts were more than merely preparatory. Taylor LJ reasoned that once Jones had got into the car and pointed the gun, he had "embarked on the crime proper".
However, in other cases, the courts have taken a much stricter view, holding that defendants who seem very close to committing the full offence are still in the preparatory stage. In R v Campbell (1991), the defendant was arrested about a yard from the door of a post office. He was carrying an imitation firearm and a threatening note. The Court of Appeal quashed his conviction for attempted robbery, reasoning that he had not yet entered the post office and approached the counter, and therefore had not "embarked on the crime proper". Similarly, in R v Geddes (1996), the defendant was found trespassing in a school boys' toilet block, equipped with a large knife, rope, and masking tape. He had no legitimate reason to be there and had clearly made plans. Nevertheless, his conviction for attempted false imprisonment was quashed because he had not made contact with any pupil. The court held that he had not yet moved from preparation to implementation.
These cases illustrate the central difficulty in applying the test: drawing a principled line between preparing to commit a crime and attempting to do so. The outcomes in Campbell and Geddes suggest that the line is drawn very late in the sequence of events, often requiring the defendant to be at the point of committing the substantive offence.
A Critical Evaluation of the Test
The primary criticism of the "more than merely preparatory" test is its lack of certainty and consistency. The legislative aim of the CAA 1981 was to create a clearer standard than the old common law tests, but the case law demonstrates that this goal has not been fully achieved. The distinction between the facts of Jones (where pointing a gun in a car was an attempt) and those of Campbell (where being a yard from the target building with a weapon was not) is a fine one. As academics have noted, the judicial interpretations have not provided a clear, guiding principle for juries to apply (Simester et al., 2019). The result is that the outcome of a case can depend heavily on the specific jury's interpretation of the facts, leading to inconsistent results in similar situations.
Furthermore, the judicial gloss in Gullefer of "embarking on the crime proper" is arguably just as vague as the statutory wording it seeks to explain. This phrase seems to reintroduce the old "proximity" test, which focused on how close the defendant was to completing the offence. This appears to contradict the intention of the Law Commission, which had recommended moving away from such a strict requirement (Law Commission, 1980). If the test requires the defendant to have reached the point of no return or the final act, it narrows the scope of the law of attempts significantly.
This leads to a further criticism: the test may be too restrictive and fail to protect the public adequately. In cases like Geddes, the defendant had a clear criminal intent and had taken significant steps towards committing a very serious crime. A legal framework that prevents police intervention and criminal liability until the potential perpetrator has actually confronted their victim seems to prioritise the defendant’s freedom to a very high degree, possibly at the expense of public safety. The purpose of criminalising attempts is not just to punish but also to prevent the harm of the completed offence. A test that draws the line as late as it was in Geddes and Campbell arguably undermines this preventative function.
However, it is important to acknowledge the arguments in favour of the current test. By setting the threshold for liability relatively high, the law respects individual liberty and the principle that people should not be punished for their thoughts or for preparations which they may yet abandon. It leaves space for a locus poenitentiae (an opportunity to repent), even though a voluntary withdrawal is not a defence to an attempt once the actus reus is complete. Drawing the line too early would risk criminalising behaviour that is not yet unequivocally directed at the commission of a crime, potentially leading to injustice. Moreover, vesting the decision in the jury allows for the application of common sense and community values to the unique facts of each case. It could be argued that a rigid, technical definition would be less just than the current, more flexible approach which allows juries to make a value judgment.
Conclusion
In conclusion, the "more than merely preparatory" test for the actus reus of a criminal attempt was intended by Parliament to be a clear and workable standard. It requires the defendant to have moved beyond the stage of getting ready and to have started executing the offence. However, the judicial interpretation of this phrase, particularly the "embarking on the crime proper" gloss from Gullefer, has not produced the level of certainty that was hoped for. The case law, especially when comparing cases like Jones with Geddes and Campbell, reveals an inconsistent application of the test.
The critical weakness of the test is its ambiguity. It fails to provide a clear, predictable line between non-criminal preparation and a criminal attempt, leading to uncertainty for lawyers, juries, and the public. This uncertainty is compounded by a judicial approach that often seems to draw the line very late in the sequence of events, which may undermine the law’s ability to prevent harm before it occurs. While the test's flexibility and respect for individual liberty are valid considerations, the lack of a coherent and consistent principle means that its application can appear arbitrary. Therefore, while the statutory formula is a simple one, its practical meaning remains elusive and continues to be a problematic area of criminal law.
References
Cases
- 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 [1990] 1 WLR 1057.
Legislation
- Criminal Attempts Act 1981.
Official Publications
- Law Commission (1980) Criminal Law: Attempt, and Impossibility in Relation to Attempt, Conspiracy and Incitement (Law Com No 102).
Books
- Simester, A., Spencer, J. R., Sullivan, G. R., and Virgo, G. (2019) Simester and Sullivan's Criminal Law: Theory and Doctrine. 7th edn. Hart Publishing.
