Consultation Paper on Inchoate Offences - Law Reform Commission

unequivocality approach. First, the unequivocality test can be applied inaddition to a proximity test. 62 Second, Jones was decided under theauthority of the then one-year-old case of Davey v Lee, 63 which is indeed anexample of the unequivocality approach.(d)The approach in England and Wales2.43 Section 1(1) of the Criminal Attempts Act 1981 states:“If, with intent to commit an offence to which this section applies,a person does an act which is more than merely preparatory to thecommission of the offence, he is guilty of attempting to committhe offence.”2.44 This provision is identical in substance to the recommendation ofthe Law Commission for England and Wales. The Law Commission‟s DraftBill provision 64 on the actus reus of attempt read “If, with intent to commit arelevant offence, a person does an act which goes so far towards thecommission of that offence as to be more than a merely preparatory act…”The actus reus of a criminal attempt is a “more than merely preparatory” act.Thus the 1981 Act put the common law rule that mere preparation for crimeby a single actor is not criminal on a statutory basis. It also based thedefinition of attempt on this rule.2.45 Glanville Williams suggested that a “proximate act” and a “morethan merely preparatory” act are much the same thing; the latter phrase justbeing more cumbersome. 65 Though the Law Commission aimed torecommend a formula that would express the existing common law 66 –which relied on the notion of proximity – it eschewed the use of the word“proximate” because the literal meaning of that word would make the testfor attempt too demanding. 67 In other words, if a “proximate act” isunderstood as its literal dictionary meaning then it will be understood as alast act. Williams suggested that the dominant modern English usage of626364656667Davey v Lee [1967] 2 All ER 423, 427, adopting a formulation from ArchboldPleading, Evidence and Practice (36 th ed).[1967] 2 All ER 423.Law Commission for England and Wales Report on Attempt, and Impossibility inRelation to Attempt, Conspiracy and Incitement (No 102 1980) at 86.Williams “Wrong Turnings in the Law of Attempt” [1991] Crim LR 416 at 417-418.Law Commission for England and Wales Report on Attempt, and Impossibility inRelation to Attempt, Conspiracy and Incitement (No 102 1980) at paragraph 2.47:“We have reached the conclusion that, in regard to these cases, it is undesirable torecommend anything more complex than a rationalisation of the present law.”Law Commission for England and Wales Report on Attempt, and Impossibility inRelation to Attempt, Conspiracy and Incitement (No 102 1980) at paragraph 2.48.35