Consultation Paper on Inchoate Offences - Law Reform Commission

providing, bluntly, that attempting to commit crimes is criminal, and that thisit is for the jury to decide? Dennis canvassed this possibility as “[o]neradical answer” but, we may add, an answer nonetheless. That so manycourts and experts proclaim the intractable elusiveness of a precise formulafor identifying criminal attempts may be because such a formula does notexist. If it does not exist then settling for the simple ordinary languagedescription of attempt is a sensible option. 802.51 The “more than merely preparatory” test suffers a similarweakness to that of the proximity test. That is, many acts could be describedas merely preparatory, but they could also be described as more than merelypreparatory. The problem is apparent in R v Campbell. 81 The defendant wasapprehended as he was about to enter a Post Office with an imitation gun,sunglasses, and a threatening note. The Court of Appeal held that becausehe had yet to enter the place of the intended robbery, the defendant‟s actshad not progressed beyond mere preparation and thus could not beconsidered a criminal attempt to commit robbery. This decision has beencriticised for undermining police efforts to prevent crime since it means theymust – if a prosecution for attempt is to be achieved – hold off intervening. 82The decision also illustrates the malleability of the “more than merelypreparatory” formula because the judges‟ choosing of the perimeter of thePost Office building as the dividing line between mere preparation andattempt was not something mandated by the text of the 1981 Act. Again, theCourt‟s decision could be otherwise and yet claim with at least equalplausibility to be consistent with the 1981 Act. That is, in walking purposelytowards the Post Office door the defendant could be said to have advancedbeyond the merely preparatory acts of equipping himself with a fake gun androbbery note.2.52 Further illustration of this indeterminacy criticism is provided bycontrasting R v Geddes 83 with R v Tosti. 84 In Geddes the defendant had beenin a boys‟ school toilet in possession of, among other things, a knife andrope. The Court of Appeal 85 held what the defendant had done was notbeyond mere preparation and accordingly quashed his conviction forattempted false imprisonment. In Tosti the defendants had run off when seen808182838485See Dennis “The Law Commission Report on Attempt and Impossibility in Relationto Attempt, Conspiracy and Incitement: (1) The Elements of Attempt” [1980] CrimLR 758 at 768.[1991] Crim LR 268.JC Smith‟s commentary [1991] Crim LR 268 at 269.[1996] Crim LR 894.[1997] Crim LR 746.Bingham CJ, Ognall and Astill JJ.38