Criminal Attempts Act 1981

Summary

The Criminal Attempts Act 1981 codified and reformed the law of criminal attempts in England and Wales, replacing the previous common law position and resolving significant uncertainty about the threshold between preparation and attempt. Section 1(1) provides the statutory definition: a person is guilty of attempting to commit an offence if, with intent to commit it, he does an act which is more than merely preparatory to the commission of the offence. The Act thus requires two elements: (a) the mens rea element of intent to commit the full offence; and (b) the actus reus element that the act has crossed the threshold from mere preparation into an act more than merely preparatory. Whether an act is more than merely preparatory is a question of fact for the jury (s.4(3)), though the judge must first rule as a matter of law whether there is evidence on which a jury could find the act was more than merely preparatory. The House of Lords considered this threshold in R v Jones [1990] 1 WLR 1057, emphasising that the 'Rubicon' test (irrevocable decision to commit the offence) was too high a threshold. On impossibility, the Act resolved the pre-Act uncertainty generated by Haughton v Smith [1975] AC 476 by enacting (ss.1(2)–(3)) that a person may be guilty of attempt even though the facts are such that the commission of the full offence is impossible. This was confirmed and its implications clarified by the House of Lords in R v Shivpuri [1987] AC 1. The Act only applies to indictable offences (those triable on indictment or either way); it does not apply to summary-only offences (s.1(4)).

Key Points

• Statutory definition of attempt (s.1(1)) — a person is guilty of attempting to commit an offence if, with intent to commit it, he does an act which is more than merely preparatory to the commission of the offence; both elements must be proved
• Mens rea — intent to commit the full offence is required; recklessness is not sufficient; where the full offence requires particular circumstances, the question is whether the defendant believed those circumstances to exist: R v Khan [1990] 1 WLR 813 (recklessness as to circumstances may suffice for attempt in limited cases)
• More than merely preparatory — the act must have crossed the threshold from preparation into attempt; the jury decides this as a question of fact after the judge rules there is sufficient evidence; the acts must be immediately and not remotely connected to the offence: R v Jones [1990] 1 WLR 1057
• Impossibility (ss.1(2)-(3)) — a person may be guilty of attempt to commit an offence even where the facts are such that the commission of the full offence is impossible (factual impossibility); R v Shivpuri [1987] AC 1 confirmed the House of Lords would apply ss.1(2)-(3) literally following its own overruling of Anderton v Ryan
• Application to indictable offences only (s.1(4)) — the Act applies only to offences triable on indictment or either way; summary-only offences cannot be attempted under the Act
• Sentence for attempt — a person convicted of an attempt to commit an indictable offence is liable to any penalty to which he would have been liable on conviction of that offence; for murder, the sentence for attempted murder is a mandatory life sentence (murder carries a mandatory life sentence and the maximum for attempt follows)
• Abolished common law attempts (s.6) — the common law offence of attempt was abolished for offences to which the Act applies; conspiracy to defraud and other common law inchoate offences were not abolished
• Procedural provisions (s.4) — whether an act is more than merely preparatory is a question of fact for the jury; the judge must direct the jury on the threshold and withdraw the case from the jury if there is no evidence capable of supporting a finding of 'more than merely preparatory'

Parts & Sections

Amendments History

Frequently asked questions

What are the legal requirements for being guilty of a criminal attempt?

Under Section 1(1) of the Criminal Attempts Act 1981, a person is guilty of attempt if they intend to commit an offence and perform an act that is more than merely preparatory to its commission. The law requires proof of two elements: the mental intent to commit the full offence and the physical act that has crossed the threshold from mere preparation into an attempt.

Does the Criminal Attempts Act apply to all types of criminal offences?

The Act applies only to indictable offences, which are those triable on indictment or either way. It does not apply to summary-only offences. Therefore, it is not possible to be charged with attempting to commit a summary-only offence under this legislation, as the statutory definition of attempt is restricted to the more serious categories of criminal conduct.

Can someone be convicted of attempt if it was actually impossible to commit the crime?

Yes, under Sections 1(2) and (3) of the Act, a person can be guilty of attempt even if the facts make it impossible to commit the full offence. This resolves previous legal uncertainty. The House of Lords confirmed in R v Shivpuri that these provisions must be applied literally, meaning a person can be convicted if they believed they were committing an offence, even if it was objectively impossible.

Who decides if an act is more than merely preparatory to a crime?

The determination of whether an act is 'more than merely preparatory' is a question of fact for the jury. However, the judge must first rule as a matter of law whether there is sufficient evidence for a jury to make that finding. If there is no evidence capable of supporting the finding that the act crossed the threshold, the judge must withdraw the case from the jury.

What is the potential sentence for a criminal attempt?

A person convicted of attempting to commit an indictable offence is liable to any penalty they would have faced for committing the full offence. For example, because murder carries a mandatory life sentence, the sentence for attempted murder is also a mandatory life sentence. The maximum penalty for the attempt follows the maximum penalty for the completed crime.

Did the Criminal Attempts Act replace all previous common law rules on attempts?

The Act abolished the common law offence of attempt for acts done after its commencement, replacing it with the statutory definition. However, it did not abolish all common law inchoate offences. Specifically, the law relating to conspiracy to defraud and other offences involving an intent to defraud remains unaffected by the Act.