R v Gullefer (Note)

This is the judgment of the Court. Mr. Justice Kennedy and Mr. Justice Owen are on circuit and accordingly are unable to be present.

On 26th February 1986 before the Crown Court at Snaresbrook the appellant was convicted of attempted theft and sentenced to six months' imprisonment.

The Judge certified that the case was fit for appeal on the ground that "a submission was made that the action alleged as constituting the attempt (as to which there was no dispute, because his action was filmed on video tape, which the jury and I saw) could not amount to an attempt to steal, even if the jury were satisfied that what the defendant did was done with the object of dishonestly receiving a sum of money equivalent to his stake from a bookmaker". He also appeals against sentence by leave of the single Judge.

The facts were as follows. On 5th March 1985 the appellant attended the Greyhound Racing Stadium at Romford. During the last race, as the dogs rounded the final bend, he climbed the fence onto the track in front of the dogs, waving his arms and attempting to distract them. His efforts were only marginally successful, and the stewards decided that it was unnecessary to declare "no race". Had they made such a declaration, by the rules the bookmakers would have been obliged to repay the amount of his stake to any punter, but would not have been liable to pay any winnings to those punters who would have been successful if the race had been valid.

When interviewed by the police the appellant said the reasons for his behaviour were partly that a year earlier he had lost a large bet at the stadium by reason of one of the stadium's staff leaning over the rails and distracting the dog on which he had gambled. He also admitted that he had attempted to stop the race because the dog on which he had staked £18 was losing. He hoped that by his actions the dogs would be distracted, that the stewards would declare "no race" and that he would therefore recover his stake from the bookmaker.

The perfected grounds of appeal contained four grounds. First, that the property which was the subject of the alleged attempted theft was not "property belonging to another" within the meaning of the Theft Act. Secondly, that even if the appellant had successfully completed his plan and had recovered the £18 from the bookmaker, that would not have amounted to an "appropriation of property belonging to another". Those two grounds of appeal were abandoned by Mr. Copeman at the outset of his submissions to this Court. In the light of our decision on the third ground of appeal, it is unnecessary for us to enquire whether that abandonment was proper.

The main burden of counsel's submission to us has been the third ground of appeal, namely that the acts proved to have been carried out by the appellant were not "sufficiently proximate to the completed offence of theft to be capable of comprising an attempt to commit theft".

We have been referred to a number of decisions, many of them of respectable antiquity, which show, if nothing else, the difficulties which abound in this branch of the criminal law. The present law is, however, now enshrined in the words of the Criminal Attempts Act 1981.

Section 1 provides as follows: "If, with intent to commit an offence to which this section applies, a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence."

Section 4(3) provides that: "Where, in proceedings against a person for an offence under section 1 above, there is evidence sufficient in law to support a finding that he did an act falling within subsection (1) of that section, the question whether or not his act fell within that subsection is a question of fact.

Thus the Judge's task is to decide whether there...