Attempt - The actus Reus of Attempted Crime

The actus Reus of Attempted Crime

Whether the actus reus of an attempt has occurred is a question of fact for the jury to decide after having heard the judge's instructions regarding the law. The common law precedent is used to distinguish between acts that were merely preparatory and those sufficiently proximate or connected to the crime. However, sometimes it is hard to draw the line between those acts which were merely preparatory, and those that went beyond that. Anyone who is planning and executing a plan, will always go through a series of steps to arrive at the intended conclusion. Some aspects of the execution of the act will be too remote or removed from the full offense. Examples are watching the intended victim over a period of time to establish the routines and traveling to a store to buy necessary tools and equipment. But the closer to the reality of committing the offense the potential wrongdoer moves, the greater the social danger they become. 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 recognise a principle of individual liberty that only those people who actually choose to break the law should be arrested. Since the potential wrongdoer could change their 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 realized.

England and Wales

In English law, an attempt is defined as 'doing an act which is more than merely preparatory to the commission of the offence' according to the Criminal Attempts Act 1981. "The test of proximity was that the defendant must have ...crossed the rubicon, burnt his boats, or reached a point of no return". So the defendant has reached that part of the series of acts, which if not interrupted, frustrated, or abandoned, would inevitably result in the commission of the intended offence. But section 1(1) of the Criminal Attempts Act 1981 defines the actus reus as that is "...more than merely preparatory to the commission of the offence," that allowed liability to attach slightly earlier in the sequence of acts. Subsequent ratio decidendi have abandoned the more formal common law last step test, leaving it to the jury to decide. A defendant who changes their mind after the act is sufficiently proximate, is still guilty of an attempt although the change of heart could be reflected in the sentencing.

However, there is some uncertainty as to what exactly 'more than merely preparatory' means. It is upon the discretion of the judges and the jury to decide. Major criticism was attracted after the judgement in R v Geddes, where the court acquitted the defendant who was trying to kidnap a young boy, stating that he had not gone far enough, and his acts were 'merely preparatory'.

New York State

In New York law, the element of actus reus is that the person engages in conduct that "...tends to effect the commission of such crime." The test this requires either:

• An action that reveals a criminal intent, that is, res ipsa loquitur, or "the thing speaks for itself," or
• The person has dangerous proximity, or is "dangerously near and close to the accomplishment of the crime."

Model Penal Code

Under the Model Penal Code, for a defendant to be convicted of attempt requires that they perform a "substantial step in a course of conduct planned to culminate in s commission of the crime" (MPC 5.01(1)(c)).