Learning Outcomes
After reading this article, you will be able to explain and apply the main legal principles governing inchoate criminal liability by attempt. You will understand what constitutes an attempt under the law, including the requirement for acts to be 'more than merely preparatory', the necessity of intent, and the treatment of impossibility. You will also be able to apply these rules to practical SQE2-style questions.
SQE2 Syllabus
For SQE2, you are required to understand attempts as a specific form of inchoate liability. You need to be able to identify when an attempt arises, advise on whether liability for attempt is established on given facts, and distinguish attempts from mere preparation or from completed offences.
Focus your revision in this article on:
- The legal definition of an attempt and what offences are capable of being attempted
- The 'more than merely preparatory' test and the types of acts that will (and will not) suffice
- The requirement of intent for attempts and how this differs from completed offences
- Impossibility in attempts (factual and legal) and the outcome under the Criminal Attempts Act 1981
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What is the main legal test used to decide whether a defendant’s conduct amounts to an attempt?
- Which forms of mens rea are sufficient for attempt: intention only, or can recklessness also suffice?
- Can impossibility be a defence to a charge of attempt in English law? What is the position for factual versus legal impossibility?
- A person tries to steal from an empty safe, believing there is money inside. Is this an attempt?
Introduction
This article examines the key principles governing liability for attempts, a core inchoate offence for SQE2. Attempts criminalise conduct which is close to, but falls short of, the full offence. The law on attempt is mainly found in the Criminal Attempts Act 1981. You must understand what kinds of acts go beyond preparation and amount to attempt, what level of intent is necessary, and how the law treats impossible attempts.
Key Term: inchoate offence
An offence criminalising steps taken towards the commission of a substantive crime, even if the substantive crime is not completed.Key Term: attempt
When a person, with intent to commit an offence, does an act which is more than merely preparatory to committing the offence.Key Term: more than merely preparatory
The statutory threshold in the law of attempt; acts that show the defendant has started the actual commission of the crime itself, not just planning or preparation.Key Term: impossibility
In the law of attempt, this refers to situations where completion of the full offence is impossible as a matter of fact or law; treatment under s 1(2) Criminal Attempts Act 1981 differs depending on type.
What is an Attempt?
The offence of attempt exists to impose liability on those who move beyond planning and try to commit a substantive crime, even if they do not succeed for any reason.
Key Term: substantive offence
The principal criminal offence that the defendant intended to commit.
Section 1(1) of the Criminal Attempts Act 1981 sets out the basic definition:
A person is guilty of attempting to commit an offence to which this section applies if, with intent to commit that offence, they do an act which is more than merely preparatory to the commission of the offence.
When Can an Attempt Be Charged?
- Only indictable and either-way offences can be attempted (not summary-only offences unless provided for specifically).
- There is no attempt to attempt, nor attempt to aid or abet (s 1(4)(a)-(b) CAA 1981).
The Actus Reus: More than Merely Preparatory
The principal test in attempt is whether the defendant’s conduct goes beyond mere preparation and does an act that is more than "merely preparatory" towards the commission of the offence.
Key Term: actus reus
The conduct element of an offence—here, doing an act which is more than merely preparatory.
What Counts as "More Than Merely Preparatory"?
There is no precise statutory definition—the test is interpreted by case law. In determining whether conduct amounts to an attempt, ask whether the defendant has started the crime proper, not just preparing for it.
Examples
- Buying a weapon, writing a plan, or travelling to the scene are generally preparatory acts.
- Breaking into a house and going upstairs with intent to steal is more than merely preparatory for attempted burglary.
- Trying to pick a pocket, even if there is nothing in it, is more than merely preparatory for attempted theft.
See the following worked example for practical application.
Worked Example 1.1
Scenario:
Salma decides to rob a bank. She writes out demand notes, buys a mask, and waits outside the bank. Before entering, she is arrested in the car park. Is Salma’s conduct an attempt?
Answer:
Salma’s conduct up to waiting outside the bank is likely still preparatory. Unless she enters or makes moves into the actual commission of the robbery (such as pulling out a weapon inside), she has not done an act more than merely preparatory. Her acts remain preparation.
Worked Example 1.2
Scenario:
Ronald pulls out a knife and demands money from a cashier, but the till is empty. Has he committed attempted robbery?
Answer:
Yes. Ronald has done an act (threatening the cashier at knifepoint) that is more than merely preparatory—he has begun the commission of the crime proper. Even though the till was empty, this is an attempt.
The Mens Rea: Intention
For an attempt, the defendant must intend to commit the full (substantive) offence.
Key Term: intent (in attempts)
The prosecution must show that the defendant intended to bring about the elements of the substantive offence—nothing less will suffice.
- For result crimes (e.g., murder), the defendant must intend the result (e.g., to kill).
- For conduct crimes, intention to perform the conduct is required.
- Recklessness will not normally suffice, unless the full offence requires it as to a circumstance (such as attempted rape under old law—be aware this area is complex).
Exam Warning
The level of intent required for attempt is strict. For murder, intent to kill is needed for attempted murder (not merely intent to cause grievous bodily harm).
Worked Example 1.3
Scenario:
Oliver, intending to damage property, throws a brick at a window but misses completely. He is charged with attempted criminal damage. He claims he only meant to scare the owner, not to cause actual damage.
Answer:
If Oliver lacked intention to actually cause damage (even though he was reckless as to whether damage would occur), he cannot be liable for attempted criminal damage. The prosecution must show he intended the result.
Impossibility: Fact and Law
Under s 1(2) Criminal Attempts Act 1981, a person may be guilty of attempting to commit an offence even though the facts are such that commission of the offence is impossible.
Types of Impossibility
-
Factual Impossibility: Defendant intends to commit an offence, but unknown to them, the crime cannot be committed on the facts (e.g., the property doesn’t exist, the pocket is empty, the victim is already dead). The law still treats this as an attempt.
-
Legal Impossibility: The act intended is not a crime at all (e.g., D believes that carrying cheese is a criminal offence, but it is not). In this case, there is no attempt.
Key Term: factual impossibility
Commission of the full offence is prevented by unknown facts—still sufficient for attempt if intent is present.Key Term: legal impossibility
What is intended is not a crime—no attempt liability arises.
Worked Example 1.4
Scenario:
Lina attempts to steal from a safe, but it is empty. She believes it contains money and tries to open it. Is she guilty of attempted theft?
Answer:
Yes. Lina’s belief that there is money in the safe and her act of trying to steal it show intent. This is a factually impossible attempt—she can be convicted.
Withdrawal
Withdrawal is not a defence to attempt if the defendant has already done an act more than merely preparatory. It may affect sentencing but not liability.
Attempt and Complete Offence
- If the full offence is completed, the defendant is charged with the completed crime (not attempt).
- If the attempt fails or is interrupted, only attempt can be charged.
Summary
- Attempt covers acts which go beyond mere preparation towards a substantive offence.
- The threshold is 'more than merely preparatory'—acts must move from planning to actually trying to commit the crime.
- The required mental element is intent to commit the full offence.
- Factual impossibility is NOT a defence; legal impossibility is.
Key Point Checklist
This article has covered the following key knowledge points:
- Attempt exists to penalise those who move beyond planning and make direct efforts to commit crime, even if they fail.
- The actus reus is an act 'more than merely preparatory'—not just planning, but a real step towards commission.
- Only intention (not recklessness) to commit the complete offence suffices for attempt.
- Factual impossibility is not a defence—legal impossibility is.
- There is no defence of withdrawal after the attempt has commenced.
Key Terms and Concepts
- inchoate offence
- attempt
- more than merely preparatory
- impossibility
- substantive offence
- actus reus
- intent (in attempts)
- factual impossibility
- legal impossibility