Attempt: Encyclopedia II - Attempt - The actus reus of attempted crime

Attempt - The actus reus of attempted crime

Whether the actus reus of an attempt has occurred is a question of common sense fact for the jury to decide having heard the directions as to law from the judge. The common law used to distinguish between acts that were merely preparatory and those which were sufficiently proximate. When anyone is planning and executing a plan, there will always be a series of steps that have to be taken to arrive at the intended conclusion. Some aspects of the execution will be too remote from the full offense, e.g. watching the intended victim over a period of time to establish the routines, travelling to a store to buy necessary tools and equipment, etc. But the closer to the reality of committing the offense the potential wrongdoer moves, the greater the social danger he or she becomes. This is a critical issue for the police who need to know when they can intervene to avert the threatened harm by arresting the person. This is a difficult policy area. On the one hand, the state wishes to be able to protect its citizens from harm. This requires an arrest at the earliest possible time. But, most states also have a libertarian principle that only those people who actually choose to break the law should be convicted. Since the potential wrongdoer could change his or her mind at any point before the crime is committed, the state should wait until the last possible minute to ensure that the intention is going to be realised.

In English law, the test of proximity was:

So the defendant has reached that part of the series of acts, which if not interrupted or frustrated or abandoned, would inevitably result in the commission of the intended offence (Stephen's Digest of the Criminal Law). But s1(1) Criminal Attempts Act 1981 defines the actus reus as "...an act which is more than merely preparatory to the commission of the offence" which allowed liability to attach slightly earlier in the sequence of acts. Subsequent ratio decidendi have abandoned the more formal common law last step test, leaving it to the jury to decide (see R v Jones (KH) [1990] 1 WLR 1057). A defendant who changes his or her mind after the act is sufficiently proximate, is still guilty of an attempt although the change of heart could be reflected in the sentencing.

Adapted from the Wikipedia article "The actus reus of attempted crime", under the G.N U Free Docmentation License. Please also see http://en.wikipedia.org/wiki