Criminal Attempts Act 1981

Introduction

The Criminal Attempts Act 1981 sets out when a person is criminally liable for trying to commit an offence in England and Wales. It covers situations where someone intends to commit a crime and goes beyond preparation, even if the full offence is not completed.

Two questions sit at the centre of almost every attempt case:

• Did the defendant intend the complete offence?
• Were their acts more than “merely preparatory” to it?

The Act also confirms liability for so‑called “impossible attempts”, where, unknown to the defendant, the offence could never have been completed on the facts (for example, because the goods were not actually stolen or the substance was not a drug). The line between preparation and attempt is fact‑sensitive and commonly left to the jury, guided by case law.

What You'll Learn

• The statutory test for attempt under section 1(1) of the Criminal Attempts Act 1981
• How “more than merely preparatory” is assessed, with leading authorities
• The mental element: intent to commit the complete offence (including attempted murder)
• How the law treats circumstance elements of offences (Khan; Pace and Rogers)
• “Impossible attempts” under sections 1(2)–(3) and the effect of R v Shivpuri
• Scope (which offences can be attempted) and penalty basics (section 4)
• Practical steps for applying the law in exams and practice

Core Concepts

Statutory definition and scope

• Section 1(1) provides that a person is guilty of attempt if, with intent to commit an offence, they do an act which is more than merely preparatory to the commission of the offence.
• Section 1(4): the section applies to offences triable on indictment (which includes either‑way offences). Purely summary offences are generally outside the scope unless a separate statute creates an attempt.
• Section 4(1): the mode of trial and maximum sentence for attempt mirror those for the complete offence (subject to any specific statutory variations).

In short: the prosecution must prove both intent to commit the complete offence and conduct that has crossed the line from planning to execution.

Mens rea: intent to commit the complete offence

• The starting point is intent. In R v Mohan [1976] QB 1, intent was described as a decision to bring about the prohibited consequence, so far as it lies within the defendant’s power.
• For attempted murder, nothing less than an intent to kill will do: R v Whybrow (1951) 35 Cr App R 141. Intent to cause serious harm is not enough for attempted murder.
• What about elements of the full offence that are about surrounding circumstances rather than results (e.g., lack of consent in rape)? In R v Khan [1990] 1 WLR 813, the Court of Appeal accepted that intent to have intercourse plus recklessness as to consent could suffice for attempted rape. However, in Attorney General’s Reference (No 3 of 1992) [1994] 1 WLR 409 (arson with intent to endanger life) and later in R v Pace and Rogers [2014] EWCA Crim 186 (attempt to convert criminal property), the courts signalled a stricter approach, requiring intent or knowledge regarding the circumstance elements where the full offence requires it.
• The safe exam position: the defendant must intend all elements that are “missing” because the offence is incomplete. For circumstance elements, older authority (Khan) tolerated recklessness where the complete offence allows it, but more recent cases tend towards requiring intent or knowledge matching the full offence.

Conditional intent:

• A defendant can intend “to steal anything worth taking”. Conditional intent can support attempt liability where the facts, as believed, would amount to the offence (see the approach in Attorney‑General’s References on theft; consistent with the 1981 Act’s focus on intent).

Actus reus: “more than merely preparatory” acts

The phrase is not defined exhaustively. The cases draw the line between preparation and execution:

Acts held to be merely preparatory:

• R v Gullefer [1990] 1 WLR 1063: Running onto a race track to get a race voided (aiming to reclaim a bet) was preparatory. The defendant had not yet gone to the bookmaker to demand the refund.
• R v Campbell (1991) 93 Cr App R 350: Defendant stopped outside a post office with sunglasses, a threatening note, and an imitation firearm. He had not entered the post office; this was held preparatory.
• R v Geddes [1996] Crim LR 894: Found in a school toilet with a knife, rope, and tape. He had not confronted or contacted a pupil. Preparatory only.

Acts held to be more than merely preparatory:

• R v Jones (1990) 91 Cr App R 351: Defendant got into the victim’s car, loaded a gun, and pointed it at the victim’s head. This had moved into the execution phase.
• Attorney‑General’s Reference (No 1 of 1992) [1993] 1 WLR 613: Defendant dragged the victim to a shed, lowered his trousers, and interfered with her. Although he did not attempt penetration, his acts were more than preparatory to rape.
• R v Tosti and White [1997] Crim LR 746: Defendants examined a padlock to a barn while armed with cutting equipment hidden nearby. Enough for attempted burglary.

Practical takeaway: juries are asked whether the defendant, on the facts, had moved from planning to trying to commit the crime. Presence at the scene plus decisive steps linked to the offence generally points to attempt; remote preparation does not.

Impossible attempts (sections 1(2)–(3))

• Section 1(2) confirms that a person can be guilty of attempt even if the facts are such that the commission of the offence is impossible.
• Section 1(3) says the question is answered by asking whether, if the facts had been as the defendant believed them to be, their acts would have amounted to the full offence.
• The leading case is R v Shivpuri [1987] AC 1. The defendant thought he was dealing with heroin; the substance was harmless. Conviction for attempt was upheld, overruling Anderton v Ryan [1985] AC 560. The focus is the defendant’s intent coupled with acts more than merely preparatory, assessed by the facts as they believed them to be.

This covers impossibility due to inept means (e.g., an unloaded or jammed gun) and impossibility due to the absence of an essential factual element (e.g., goods not actually stolen), provided the defendant believed otherwise.

Key Examples or Case Studies

1. Crowbar outside a jeweller’s at night

   • Scenario: D buys a crowbar and drives to a jewellery shop late at night. Police stop D outside before any attempt to prise open the door.
   • Analysis: On these bare facts, this looks preparatory (Campbell; Geddes). If, however, D had approached the shutter and started working on the lock, that would look more like Tosti and White, pointing towards attempt.

2. Lock‑picking tools and online tutorials

   • Scenario: D learns lock‑picking and buys tools. Arrested a week later for an unrelated matter; tools are found in a backpack.
   • Analysis: This is almost certainly preparatory (Geddes, Gullefer). It may support charges such as “going equipped for theft” under section 25 Theft Act 1968, but not attempt without clear steps towards a specific burglary.

3. Gun pointed at a victim’s head

   • Scenario: D jumps into V’s car, cocks a loaded gun, and points it at V’s head but is disarmed before pulling the trigger.
   • Analysis: This is over the line (Jones). For attempted murder, the prosecution must still show intent to kill (Whybrow). If the intent was only to threaten, attempted murder would fail even though the conduct is more than preparatory to some offence.

4. The “impossible” drugs courier

   • Scenario: D believes a suitcase holds Class A drugs and takes steps to deliver it. The powder is in fact sugar.
   • Analysis: Liable for attempt under sections 1(2)–(3) and Shivpuri. The jury ask whether, if the facts had been as D believed, the full offence would have been committed.

Practical Applications

Structuring an answer or advising on a case:

• Identify the target offence: What completed offence was D aiming to commit, and is it triable on indictment (section 1(4))?
• Mens rea: Did D intend the complete offence? For attempted murder, was there an intent to kill? For offences with circumstance elements, consider whether the law requires intent/knowledge (Pace and Rogers) or tolerates recklessness (Khan).
• Actus reus: List D’s actions in sequence. Pinpoint the moment (if any) where D moved from preparation to execution. Compare with Gullefer, Campbell, Geddes (preparation) and Jones, AG’s Ref (No 1 of 1992), Tosti (attempt).
• Impossible attempts: If completion was factually impossible, test liability by the facts as D believed them to be (sections 1(2)–(3); Shivpuri).

Charging decisions and alternatives:

• Where conduct is preparatory, consider inchoate or preparatory offences created elsewhere (e.g., going equipped for theft: Theft Act 1968, s25; possession of an imitation firearm with intent to commit an indictable offence: Firearms Act 1968, s18).
• Where both attempt and a completed but lesser offence are arguable, charge in the alternative.

Evidence pointers:

• Proving intent: admissions, messages, reconnaissance, tools, disguise, prior threats, and conduct at the scene.
• Proving more than preparation: entry to premises, confrontation with the victim, manipulation of locks/safes, positioning and readying weapons, removal of safety devices, or other acts that show the crime was in progress.
• Jury directions: Judges should explain that “more than merely preparatory” is for the jury, with illustrative case comparisons.

Defence themes:

• The acts were still preparatory (compare with Campbell/Geddes).
• No intent to commit the complete offence (e.g., no intent to kill for attempted murder).
• If relying on impossibility, remember this is not a defence unless the defendant’s belief (even if honestly held) would not have amounted to the offence on those supposed facts.

Penalty point:

• Maximum sentences for attempts match those for the complete offence (section 4(1)).

Summary Checklist

• Section 1(1): intent to commit the offence + acts more than merely preparatory
• Section 1(4): applies to offences triable on indictment
• Attempted murder needs intent to kill (Whybrow)
• Intent for attempts: Mohan; treat circumstance elements with care (Khan vs Pace and Rogers)
• Preparatory vs attempt: use Gullefer, Campbell, Geddes (not enough) and Jones, AG’s Ref (No 1 of 1992), Tosti (enough)
• Impossible attempts: sections 1(2)–(3); Shivpuri
• Consider alternative preparatory offences if the line is not crossed (e.g., going equipped)
• Sentence: same maximum as the completed offence (section 4(1))

Quick Reference