Criminal Attempts Act 1981

QB. Introduction

The Criminal Attempts Act 1981 (CAA 1981) provides a set of provisions that holds a person liable for an attempt to commit an offence. Section 1(2) provides that a person liable for attempting to commit an offence despite the fact that the commission of the offence is no possible. In this light, it cannot be said that the CAA 1981 does not strike a balance regarding culpability in criminalisation of attempts. This essay will discuss this aspect whether or not CAA 1981, in fact, is able to bring a balance.

Liability of moral culpability

The CAA 1981 focuses on culpability while determining a criminal attempt of an offence. Section 1(1) provides that when the act is more than preparatory, he is guilty of attempting to commit the offence. An attempt commences the moment when the person embarks upon the crime proper (Qadir and Khan [1997]). Each case depends on the facts in order to determine whether or not the person has gone sufficiently far towards the commission of the offence so as to make him guilty for attempt. It does not matter even if he withdrew from committing the offence. However, the important question is the extent of preparation to completing offence in order to charge him for criminal attempts. Determining whether or not an act has passed the ‘preparatory stage,’ according to CAA 1981, depends on whether or not a person actually tried to commit the act or he had only got ready; place himself in a position; or equipped himself to commit the act (Geddes [1996]).

The liability in criminal attempt leaves a question of whether or not it is justified to impose the liability of criminal attempt had the complete crime was committed. In that regard, the law of criminal attempt does not seem to consider moral culpability. Moral culpability is personal guilt that includes motivation and means rea (Hall, General Principles of Criminal Law (2005). This means that a wrong act is morally wrong and such determination must consider the motive behind the act. A moral judgment is not complete by merely focusing on the harm done, but complete when the motive behind the act is considered. Difficulty arises when the crime perpetrated has laudable motives, such as acts inspired by religious convictions, political crimes, euthanasia, to name a few. Such difficult scenarios seem to have driven the law of criminal attempt, such as the CAA 1981 that leaves out the motive and focusses on the act of attempt to commit an offence. This is seen in Section 1(2) that makes a person guilty of attempting to commit an offence despite the facts show impossibility of the offence being committed. As such, moral culpability must be treated different from a person who attempted and committed the offence.

Outcome is by choice not by chance

According to Section 1(3), if the facts of a case had been as the accused believed them to be, his intention will be considered as relating to the commission of the offence. This means the facts hold priority to determine the intent to commit crime. This clearly reflects the choices that an accused makes while he has decided to make all the necessary preparation to commit the offence. When such necessary preparations are in order, it shows his intention to commit the crime.

An attempt to commit a crime is itself a crime even when the attempt fails (Beale, ‘Criminal Attempts’ (1903)). However, it has the characteristics and qualities of the crimes. The attempt has the criminal act and criminal intent where the act shows not merely a physical act but also a specific intent. Thus, a person is not guilty for a criminal attempt unless he had a criminal intent at the time of committing an offence. A criminal attempt has a specific intent to complete the crime attempted. This means there cannot be an attempt without the intent to do the act. Hence, a choice that an accused has made to attempt to commit an offence with the specific intent must be given an inculpatory role to relate choice and culpability and reduces the influence of chance.

If two people have made the choice to commit and offence, the one who succeeded and the one who failed are equally culpable and deserve equal punishment. There cannot be moral differences and if otherwise, it creates outcome-luck where the one who failed is liable for just criminal attempt and not for the crime (Culver, Readings in the Philosophy of Law (2017). The test of criminal culpability lies in determining the conduct of the person whether it is at the early state of a criminal enterprise or at the last act or complete attempt. This is a normative judgement about how far the person have progressed in his criminal enterprise. Depending on the stage of progress, penalties are provided. For instance, Section 4(1) provides that a person guilty of a criminal attempt act, if the attempted offence is murder will be liable to life imprisonment, which is the same for the offence of murder.

Conclusion

Based on the observation in this essay, the criminal law on criminal attempts has struck a balance providing for culpability in regard to criminal attempts. It applies moral culpability differently to persons subject to the conditions under which they attempted or committed an offence. The law focuses on the choice made by an accused by priotising their acts to draw specific intent. This in fact shows that the relevant laws focus on culpability and not results.

QC. Introduction

The current case involves determining whether or not: a) voluntary intoxication can be used as a defence for basic intent offence where Rizza cause Kath serious injury; b) Rizza can claim mistake and self-defence as defence when she is under voluntary intoxication when she mistook Sasha had a gun and was about to shoot her; and c) Rizza can claim epileptic automatism as a defence for kicking and causing injury to Gregaor

Liability for basic intent offence

The current case needs determination of whether Rizza can use intoxication as a defence. Rizza must note that intoxication cannot be a defence, whether it is whether voluntary or involuntary. In the current case, Riza was under voluntary intoxication. The basic determination is whether Rizza has a basic or specific intent to cause Kath serious injury. Basic intent offence, as covered under Section 20 of the Offences Against the person Act 1861, covers grievous bodily harm involving recklessness. Specific intent offence, as covered under Section 18 of the Offences Against the person Act 1861, covers grievous bodily harm with the intent to cause grievous bodily harm (Law Commission, Intoxication and Criminal Liability (2009)).

The current case applies to basic intent offence where Rizza was reckless in barging in Kath’s house and crashing into Kath causing Kath injuries. Rizza must note that voluntary intoxication can never be used as a defence to a crime of basic intent. As crimes of basic intent includes common assault, Rizza will be liable for common assault.

Mistake as a Defence

In Fotheringham (1989), it was held that drunken mistakes cannot be defence to crimes of basic intent. In this case, Rizza mistook Sasha had a gun and was about to shoot her. This is a genuine belief and forms a limited defence, where such mistake could be relied upon and such mistake was induced by voluntary intoxication ( [1981]).

Considering the facts of the case, it should be considered whether Rizza’s act was in self-defense. If Rizza can prove self-defence, she can escape liability for battery. For a self-defence excuse, Rizza must have used a lawful force to defend herself from the threatened attack of Sasha (Hill, The UK Law on Self-Defence (2012). The relevant question is whether or not her kicking Sasha was necessary and was not more than what was reasonable in the given circumstance. In this case, Rizza thought Sasha has a gun and was about to shoot her. Her reaction was instinctive, and Rizza thought it was necessary to defend herself as she believed she is facing an immediate threat.

Given the facts of the current case, Rizza’s use of the force in self-defence may appear to be lawful, although she mistook herself as the victim of an attack. However, in Hatton (2006), it was held that a person holding a mistaken belief that he was under an attack and was acting in self-defence cannot rely on such belief if the belief was induced by a voluntary intoxication. In this case, Rizza was under voluntary intoxication, which might have induced the mistaken belief that Sasha was holding a gun and was about to shoot her. As such, she cannot claim self-defence and will be liable for basic intent offence.

Epileptic automatism as a defence

The offence related with injury to Gregaor will be determined based on the defence of automatism. Automatism can be a defence when the action is due failure of the accused’s mind and not because the accused has a disease of the mind. The automatism involves an involuntary movement of the body or limbs of the accused. However, where the accused has some control over his actions, he cannot avail such defence. In the given case, Rizza can claim this defence by proving a failure of her mind, which led to kick Gregaor due to involuntary movement of her lower limbs.

Rizza must, however, note that the defence is available only when her act she committed is out of character and inappropriate for the given circumstances. Thus, if the accused is a habitually aggressive person and has committed a violent and aggressive crime, this presents a more difficult position to substantiate the diagnosis of epileptic automatism (Bodani, Oxford Textbook of Neuropsychiatry (2020)). In the given case, the incident involving Kath may support an argument of her being habitually aggressive. This may reduce her chances of a successful claim of epileptic automatism.

In Bratty (1963), the House of Lords recognises the absence of mind in an epileptic seizure and action in absence of mind is automatic. Thus, the defence of absence of mind is a legal defence. However, there must not be any evidence of premeditation or concealment, which otherwise will not substantiate the diagnosis of automatism (Bodani, Oxford Textbook of Neuropsychiatry (2020)). In this case, Rizza, because she has started forgetting to take her medication, had an epileptic fit. This is a sign of absence of her mind and it cannot be said that she preplanned the incident. This is sufficient to substantiate the diagnosis of her automatism.

Conclusion

In the current case, Rizza will be liable for basic intent offence as she cannot claim intoxication as a defence. Voluntary intoxication cannot be used as a defence for such offence.

Since Rizza was under voluntary intoxication, although she had a mistaken belief that she was under an attack by Sasha and was acting in self-defence, she cannot claim mistake or self-defence as a defence.

In regard to the incident involving Gregaor, Rizza can claim epileptic automatism to demonstrate that the epileptic fit caused an absence of mind where the act of kicking Gregaor was automatic.

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