Can I Be Convicted Of An Attempt To Commit A Crime?

Can I Be Convicted Of An Attempt To Commit A Crime?

The concept of ‘attempt’ in criminal law is one is incredibly complex. After all, you have not actually committed a crime. Therefore, how can you be prosecuted, let alone convicted for something you have not actually done? For example, say you attempted to rob a bank, but you were confronted with a six foot five, two hundred pound security guard who chased you away before you even set foot in the premises? At what point is there an attempted robbery? And is attempted robbery even an offence? Many crimes do not have an ‘attempt offence’ attached to them.

Let us answer these questions and more below.

What offences can be attempted?

The first matter to clarify is what type of offences can be ‘attempted’ in the criminal law sense.

In England and Wales, there are three types of offences:

1. Indictable

2. Summary

3. Either way

Offences are categorised based on their seriousness, the possible sentence, and the Court that will hear the case.

The basic rule is that only purely indictable offences have a ‘cousin offence’ of attempt. Indictable offences are offences that can only be heard in the Crown Court, and include:

• Murder.

• Rape.

• Manslaughter.

• Robbery.

• Possession of a firearm.

• Causing death by dangerous driving.

Therefore, although you can be charged with attempted robbery, there is no such crime as attempted theft, because theft is an ‘either way’ offence so can be tried in either the Magistrates’ Court or the Crown Court.

What is an attempt?

Section 1(1) of the Criminal Attempts Act 1981 provides that a person will be guilty of attempting to commit an offence if:

a) they intended to commit that offence, and

b) they did an act which was more than merely preparatory in order to commit the offence.

If we look at our example of an attempted robbery, a) is satisfied if the Prosecution can prove you did, in fact, intend to rob the bank. The Prosecution may present evidence such as WhatsApp or text messages between you and another person who was also in on the plan to commit the robbery. Or they could show via CCTV that you had visited the bank many times in person (even though you held no account there) and spent many hours sitting outside the bank watching the actions of the security guards and movements of customers and staff. The intention is known as the ‘mental element’ of the offence, or mens rea. If the Prosecution cannot prove your intention to commit a crime to the criminal standard (beyond reasonable doubt) you cannot be convicted.

Regarding b), an act that was more than preparatory could include that you tried to enter the bank with a weapon. However, the issue of what constitutes an act that is more than preparatory is a vexed one and provides plenty of scope for building a defence. This is because the steps between preparation and commission of an offence are many, and there is no statutory definition of what constitutes ‘more than preparatory.’

How do the Court’s determine ‘more than preparatory’ in attempted criminal offences?

There are two ways to measure how far a person’s actions have progressed in terms of actually committing a criminal offence. You can work backwards, from the commissioning of the offence itself through to the idea of committing it, or vice versa. In the past, the Courts have gone with the former option. One test regularly employed was known as the ‘last act’ test. The Court determined what the last act for committing the offence would be, and the act before that would result in an ‘attempt.’ Again, let us look at our robbery scenario. If the last act of a bank robbery is to walk up to the teller, point a weapon at them and say “hand over all the money or I’ll shoot you”, then you could say that trying to walk into the bank with a weapon would satisfy the requirement for attempt.

In more recent times, the Courts have tended to start at the other end of the spectrum (mere preparation) and work forwards in time. Expressions such as "on the job", "in the executory stage", "embarked on the commission of the crime proper" and "crossed the Rubicon" have been used in an effort to determine the point at which mere preparation tips into an attempt to commit the actual offence.

In every case, the Court must decide:

i. what the conduct element of the substantive offence is

ii. what the Defendant did.

The closer the Defendant’s actions get to actually committing the offence, the more likely they will be found guilty. However, this will always be a question of fact.

What if the Defendant changes their mind right before they commit the offence?

The law does not provide much leeway for thinking better of your actions and changing your mind. If you are found, beyond reasonable doubt, to have gone beyond mere preparation and up to that point, you intended to commit the offence, the fact you decided not to go through with the offence at the last minute is neither here not there. But your Criminal Defence Solicitor will argue the fact that you mind at the preparation stage, rather than go any further with actions that could constitute more than mere preparation.

Wrapping up

If you have made it to the end of this article you will clearly see that to ensure your best interests are protected, it is essential to instruct an experienced Criminal Defence Solicitor if you are charged with an attempt to commit an indictable offence. A Solicitor can build a strong defence for you, either on the grounds that you did not intend to commit a crime, or you never progressed matters past the preparatory stage.

Getting legal advice

If you have any questions regarding this article, please call 0300 3732424. If you have been arrested and require police station representation, please get in touch through our emergency number 0300 373399.