Attempt where the full offence is impossible (Criminal Attempts Act 1981, s.1(2) and (3))
Leaving a restaurant in York, Simon Clarke takes a black umbrella from the stand. He believes it belongs to another diner and intends to keep it. In fact, unknown to him, it is his own umbrella, which he had forgotten bringing. He is charged with attempted theft.
Which of the following best describes Simon's liability for attempted theft?
Choose one answer to see the reasoning.
Worked answer
Correct answer D: He is guilty, because he did a more than merely preparatory act with intent to steal, judged on the facts as he believed them; impossibility is no bar.
THE RULE TO REMEMBER
A person may be guilty of attempt even where the full offence is impossible; his intent is judged on the facts as he believed them to be (s.1(2), (3) CAA 1981).
Attempt where the full offence is impossible (Criminal Attempts Act 1981, s.1(2) and (3))
Under s.1(1) of the Criminal Attempts Act 1981, a person is guilty of an attempt if, with intent to commit an offence, he does an act which is more than merely preparatory to its commission. Section 1(2) provides that a person may be guilty of attempt even though the facts are such that commission of the offence is impossible. Under s.1(3), where his intention would be an intent to commit the offence if the facts had been as he believed them to be, he is regarded as having that intent. Simon could not commit theft because the umbrella was his own. But on the facts as he believed them, he intended to steal another diner's umbrella, and taking it was more than merely preparatory to that theft. Theft is an indictable offence to which s.1 applies, so he is guilty of attempted theft.
Why A is wrong: Section 1(2) expressly provides that impossibility does not prevent liability for attempt.
Why B is wrong: Theft requires property belonging to another; the umbrella was his own, so only an attempt is possible.
Why C is wrong: Doing everything he believed necessary is clearly more than merely preparatory.
Why E is wrong: Under s.1(3) his intent is judged on the facts as he believed them, so the true ownership does not prevent an attempt.
A little more practice done.
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