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The essence of the crime of attempt is that the defendant has failed to commit the actus reus (the Latin term for the "guilty act") of the full offense, but has the direct and specific intent to commit that full offense. The normal rule for establishing criminal liability is to prove an actus reus accompanied by a mens rea at the relevant time (see concurrence and strict liability offenses as the exception to the rule).
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:
- that the defendant must have "...crossed the rubicon, burnt his boats, or reached a point of no return". (DPP v Stonehouse * 2 All ER 909 per Lord Diplock.)
The question of impossibility
A standard policing strategy is the use of an agent provocateur to offer temptation to suspected criminals. In some countries, evidence resulting from entrapment is inadmissible. Nevertheless, undercover police officers do sell real or fake contraband such as illegal drugs or guns, as a means of exposing criminal activity. Some consider the use of fake material as a slightly safer way to catch criminals, rather than risk the real contraband falling into the wrong hands. But if there is no actual contraband and the actus reus of the full offense is "possession" of prohibited materials, there can be no criminal possession. Can there be an attempt to possess when, in the circumstances, it was impossible to follow through to commit the full offense?
Under English law, s1(2) Criminal Attempts Act 1981 applies the Act even though the facts are such that the commission of the offense is impossible so long as, under s1(3), the defendant believes that he is about to break the law and intends to commit the relevant full offense. This reverses the House of Lords' decision in Haughton v Smith which had held it to be a good defense if the intended crime was factually or legally incapable of fulfilment. This change in the law avoids any problem in an early arrest because, once in police custody, it is impossible to commit the full offense. Further, both the incompetent criminal who fails because the means adopted are inadequate (e.g. intends to poison a victim but the amount administered is harmless, or makes a false statement that does not deceive the intended victim) and the unlucky thief who find the pocket or purse empty, can now be convicted.
The mens rea of attempted crime
Only a direct & specific intent will support a conviction. Recklessness is not a sufficient mens rea. That means that the defendant must have decided to bring about, so far as lay within his or her powers, the commission of the full offense. However, transferred intent applies so that if "A" intends to murder "B" with a gun, but the shot accidentally misses and kills "C", then "A" is guilty of the murder of "C" and the attempted murder of "B". Alternatively, if "A" intends merely to frighten "B", and that same shot intentionally misses "B" but accidentally kills "C", "A" may be guilty of assaulting "B" (among other things), but not attempted murder, unless "A" intended that such fright would kill "B". Whether A would be guilty of murdering "C" would depend on the specific circumstances and what "A" foresaw. The punishment for an attempt is often tied to that of the intended offense (e.g., half the fine, or half the prison time).
Under English law, R v Walker and Hayles (1990) 90 Cr. App. R. 226 deals with the issue of the power of a court to impute intention based on foresight. The defendants threw their victim from a third floor balcony and were charged with attempted murder. The judge directed the jury that they could infer intention if there was a high degree of probability that the victim would be killed and if the defendants knew "quite well that in doing that there was a high degree of probability" that the victim would be killed. The Court of Appeal did not accept that the reference to "very high degree of probability" was a misdirection, but Lloyd LJ. stated that in the rare cases where an expanded direction is required to include foresight, courts should use virtual certainty as the test, rather than high probability (see also R v Woollin * 3 WLR 382 (HL)). Also note that sometimes even mere intention to commit at an indeterminate time in the future may be criminalized, see grooming a child.
No attempt
It is not possible to attempt the other inchoate offenses of conspiracy, or aiding, abetting, counseling or procuring an offense because the defendant would be too remote from the full offense. Similarly, there can be no attempt where the mens rea for the full offense is criminal negligence since, by definition, there is insufficient intention to commit the full offense. Hence, there can be no charge of attempted involuntary manslaughter. It may, however, be possible to prove an attempted omission since all the preparatory steps are presumably commissive in building up to the situation in which the defendant will fail to act.
See also
"Attempt"