Comment
| Date | 01 February 1994 |
| Author | Mitchell C Davies |
| Published date | 01 February 1994 |
| DOI | 10.1177/002201839405800105 |
| Subject Matter | Comment |
COMMENT
PROXIMITY
IN A
TIEMPTS;
PREPARING
TO
CROSS
THE
RUBICON
The
enactment
of
the
Criminal
Attempts
Act 1981, following the
proposals of
the
Law Commission
Report
on
Attempt,
and
Impossibility
in Relation to
Attempt,
Conspiracy and Incitement (1980, No 102), was
both
expeditious
and
yet long
overdue
in the light of
the
pervasive
uncertainties of the common law.
The
vagaries of the common law of
attempt
had
proved most troublesome in relation to two questions:
(1) when would impossibility of the substantive offence afford
the
defendant
agood defence?;
and
(2) what
amounted
to sufficient evidence of the actus reus of an
attempt,
in
other
words how proximate to the full offence did
the defendant have to be before having committed an
attempt
in
law?
Two
tests have been evolved by the common law in
order
to identify the
actus reus of an
attempt.
First,
the
'last act' test promulgated by
Parke
B
in R v Eagleton (1855)
Dears
CC 515.
Hereunder
the
defendant would
commit the actus reus of an
attempt
if he had
performed
the
last act
necessary towards the commission of the full offence. Accordingly, acts
which were 'immediately connected with' the commission of the
substantive offence evidenced
the
actus reus of an
attempt
whilst acts
more distanced from
the
crime did not. This test was endorsed by
Lord
Diplock in
DPP
vStonehouse [1978]
AC
55 where he expressed it in
terms that;
'the
offender must have crossed
the
Rubicon
and
burnt
his
boats'. In
other
words
the
accused must have reached the point of no
return: he had no opportunity to change his mind. Secondly, Stephen's
Digest
of
the Criminal
Law
(9th ed) favoured amore expansive,
but
inherently uncertain, definition according to which
the
actus reus of an
attempt
was evidenced by an act which formed
'part
of a series of acts
and
which would constitute [the crime's] actual commission if it were not
interrupted'.
Stephen's test was approved, for example, in Hope v Brown
[1954] 1
WLR
250,
per
Byrne J.
Section 1 of the Criminal
Attempts
Act 1981 sought to purge
the
common law of its imperfections in providing the following definition of
an
attempt
together
with a clear provision negativing, in most instances
(mistake as to law apart: R v Taaffe [1984] 1 All
ER
747), a defence of
impossibility:
(1)
If,
with intent to commit an offence to which this section applies,
aperson does an act which is more
than
merely
preparatory
to
the
commission of
the
full offence, he is guilty of attempting to
commit the offence.
78
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