The defendant appealed against his conviction for attempting to handle stolen goods. They were to be delivered to him in a van, but the meat was intercepted and recovered by the police. The defendant argued that he should not be convicted of attempting the impossible, since the goods were no longer stolen, having returned to lawful custody. The Court of appeal had allowed his appeal.
Held: The prosecutor’s appeal failed. For section 22 the goods had to be, or remain, stolen at the time of the attempted handling. It was not open to the prosecution to change a complete, but failed, charge of handling into an offence, by calling it an attempted handling. Acts on the way to commission of some act which if completed would not be an offence could not themselves be an offence.
Lord Hailsham defined what was meant by ‘actus reus’: ‘it derives, I believe, from a mistranslation of the latin aphorism: ‘Actus non facit reum nisi mens sit rea’. Properly translated, this means ‘An act does not make a man guilty of a crime, unless his mind be also guilty’. It is thus not the actus which is ‘reus’, but the man and his mind respectively.’
The court derived three propositions: ‘1) There is a distinction between the intention to commit a crime and an attempt to commit it. Thus, in this case, the respondent intended to commit a crime under s.22 of the Theft Act. But this dishonest intention does not amount to an attempt. This distinction has not always been observed in the discussion of cases on the law affecting attempts.
2) In addition to the intention, or mens rea, there must be an overt act of such a kind that it is intended to form and does form part of a series of acts which would constitute the actual commission of the offence if it were not interrupted. In the present case the series of acts would never have constituted and in fact did not constitute an actual commission of the offence, because at the time of the handling the goods were no longer stolen goods.
3) The act relied on as constituting the attempt must not be an act merely preparatory to commit the completed offence, but must bear a relationship to the completion of the offence referred to in Eagleton as being ‘ proximate ‘ to the completion of the offence and in Davey v. Lee as being ‘ immediately and not merely remotely connected’ with the completed offence. I do not think that the present case turns on the test.’
Lord Reid said: ‘It has often been said that to constitute an attempt the act must be proximate to and not remote from the crime itself . . It must be left to common sense to determine in each case whether the accused has gone beyond mere preparation’
Lord Hailsham of St Marylebone LC, Lord Reid, Lord Morris of Borth-y-Gest, Viscount Dilhorne and Lord Salmon
[1974] 2 WLR 1, [1973] 3 All ER 1109 HL(E), [1975] AC 476, [1973] UKHL 4
lip, Bailii
Theft Act 1968 22(1) 24(3)
England and Wales
Citing:
Approved – Rex v Percy Dalton (London) Ltd CCA 1949
Birkett J said: ‘Steps on the way to the commission of what would be a crime, if the acts were completed, may amount to attempts to commit that crime, to which, unless interrupted, they would have led ; but steps on the way to the doing of . .
Applied – Regina v Donnelly 1970
(New Zealand) . .
Disapproved – Regina v Miller CCA 1965
. .
Disapproved – Regina v Curbishley 1970
. .
Cited – Regina v Eagleton 1855
Parke B defined what constituted an attempt in criminal law: ‘The mere intention to commit a misdemeanour is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanour are indictable. Acts remotely . .
Appeal from – Houghton v Smith CACD 1973
The defendant appealed his conviction for attempting to handle stolen goods, saying that that the time of his act, the goods were no longer stolen, having been taken into lawful custody by the police.
Held: The appeal failed. Lord Widgery CJ . .
Cited – Davey v Lee 1968
Lord Parker CJ defined ‘attempt’ in criminal law: ‘What amounts to an attempt has been described variously in the authorities, and for my part I prefer to adopt the definition given in Stephen’s Digest of the Criminal Law, 5th Ed. (1894) art. 50, . .
Preferred – Donnelly v Jackman 1970
Turner J considered the law of attempt: ‘He who sets out to commit a crime may in the event fall short of the complete commission of that crime for any one of a number of reasons. First, he may, of course, simply change his mind before committing . .
Cited – Regina v M’Pherson 1857
The accused was charged with breaking and entering a dwelling house and stealing certain goods therein. At the time of the breaking and entering the goods were not in the house. He was acquitted of the felony but convicted of breaking and entering . .
Cited – Regina v Hensler 1870
The accused attempted to obtain money by false pretences by sending a letter. The recipient was not deceived.
Held: An attempt to obtain money by a false pretence which is not in fact believed, is criminal notwithstanding that the consequences . .
Cited – Rex v Goodchild 1846
The defendant was accused of administering a noxious thing with intent to procure a miscarriage.
Held: It was no defence that the woman to whom the noxious thing was administered was not with child. . .
Cited – Regina v Villensky 1892
The prisoners could not be indicted for receiving stolen goods where the goods were no longer stolen when received. . .
Cited – Regina v Collins 1864
The court considered the case of an attempt where the defendant had put his hand in another’s pocket, but the pocket was empty. The fact that the victim’s pocket was empty prevented the actor from being guilty of an attempt to pick it.
Cockburn . .
Cited – Regina v Ring 1892
The defendant was accused of a mugging offence on the Metropolitan Railway. . .
Cited – Regina v Williams 1893
A boy below the age at which he could be properly indicted for rape could not be convicted, on the same facts, for an attempt. . .
Cited by:
Cited – Regina v Shivpuri HL 15-May-1986
The defendant had been accused of attempting to import controlled drugs, but the substances actually found were not in fact a controlled drug, though he had believed and intended them to be. He appealed saying that he should not be conviced of an . .
Considered – Anderton v Ryan HL 9-May-1985
The defendant was found in possession of a video recorder. She refused to name the source, but admitted that she believed it to be stolen. After it became clear that there was no evidence that it was in fact stolen, she was convicted of attempting . .
Lists of cited by and citing cases may be incomplete.
Crime
Leading Case
Updated: 11 November 2021; Ref: scu.174756