The Law Commission

APPENDIX B

ATTEMPTED MURDER

B.1 A person who tries to commit murder may be guilty of attempted murder, contrary to section 1 of the Criminal Attempts Act 1981. In a case where attempted murder is alleged, the 1981 Act requires the defendant ("D") to have done something that is 'more than merely preparatory' towards the commission of murder, with an 'intent to' kill.^[1] On conviction for attempted murder, a sentence of up to and including life imprisonment is available.

B.2 A consequence of our recommendations is that attempted murder would become 'attempted first degree murder'. We are not recommending that an offence of 'attempted second degree murder' be created or recognised by the courts.

B.3 An offence of attempted second degree murder would needlessly complicate the law. It would also in part be covering ground that is already adequately covered by, for example, the extant offences of attempting to inflict grievous bodily harm, and wounding with intent to do grievous bodily harm.

B.4 If offences of first and second degree murder are created, the courts could, following ordinary principles of interpretation, find that someone can in law attempt either first degree murder or second degree murder, contrary to the 1981 Act. It might therefore seem as if specific provision would need to be made to ensure that whilst there can be attempted first degree murder, there cannot be attempted second degree murder. We do not regard that conclusion as inevitable, and so it seems to us that specific legislation relating to attempted murder may be unnecessary.

B.5 Under an existing legal principle (discussed below), attempted murder requires proof of nothing less than an intention to kill. This is so, even though the fault element for murder itself extends beyond an intention to kill to encompass an intention to do serious harm. We do not recommend departure from this principle, even though under our recommendations (as is the case with murder under the existing law) the fault element for first degree murder extends further than an intention to kill.^[2] That being so, we think it would be open to the courts to find that adherence to this principle dictates that whilst there can be a charge of attempted first degree murder, there can in law be no charge of attempted second degree murder.

B.6 In this Appendix, we examine briefly the principles governing attempted murder. We believe that they support the view that a charge of attempted murder requires proof of an intention (in the sense discussed in Part 3) to kill. They thus support the view that a charge of attempted first degree murder would lie, whereas a charge of attempted second degree murder would not.

The meaning of intention in attempted murder^[3]

B.7 In Whybrow,^[4] the Court of Appeal ruled that for D to be guilty of attempted murder, he or she must have intended to cause the death of the victim ("V"). The Court of Appeal rejected the argument that, because an intention to inflict grievous bodily harm is a sufficient mental element for murder itself, it follows that it should be sufficient for attempted murder.

B.8 This analysis has continued to be followed in cases post-dating the Criminal Attempts Act 1981. In Walker and Hales,^[5] for example, the D's threw V off a third floor balcony. The judge directed the jury that each D was guilty of attempted murder if he 'intended, if he could, to kill [V]…and was trying to do so'.

B.9 Elsewhere in this Report, we set out our view that an intention to bring about a consequence can be inferred in a case in which D foresees that consequence as virtually certain to occur.^[6] Whatever the merits of this view where completed crimes are concerned, it could be claimed that it is inappropriate for attempts to commit crimes, where only direct intention – in the case of murder, acting in order to kill - should suffice.

B.10 The argument is that 'trying' or 'attempt' implies action undertaken 'in order to' produce some result. That implication, if accepted, requires that intention be understood in the narrow sense as 'purpose' or 'aim'. This view has some support in the case law. In Mohan,^[7] the Court of Appeal held that attempt requires:

[S]pecific intent, a decision to bring about, in so far as it lies within the accused's power, the commission of the offence which it is alleged that the accused attempted to commit, no matter whether the accused desired that consequence or not.^[8]

B.11 However, more recent authority employs something closer to the understanding of intention that we set out in Part 3. In Walker and Hales,^[9] the judge (whose direction was upheld on appeal) directed the jury that if each D 'knew quite well' that there was a high degree of probability that throwing V off the balcony would kill him, the jurors were, 'entitled to draw the inference that …he was actually trying to kill him if he could'.^[10] This direction makes it clear that, in certain cases, foresight of a high probability of death is evidence from which 'a decision to bring about…the commission of the offence' (to use the language of Mohan) can be inferred.

B.12 The view that attempts to commit crimes may include the case in which D foresees a result as high probability or virtual certainty (although, by great good fortune, the result does not come about) accords with the view of intention taken under the US Model Penal Code, for the purposes of the law governing attempts. Under the US Model Penal Code, D must act 'with the purpose of causing or with the belief that [the act] will cause' the result.^[11] The Canadian Law Reform Commission came to a similar conclusion.^[12]

B.13 In justifying this view, the commentary on the US Model Penal Code says, of the person who believes his or her conduct will cause the result (although, in the event, it does not):

The manifestation of the actor's dangerousness is just as great – or very nearly as great – as in the case of purposive conduct. In both instances a deliberate choice is made to bring about the consequence forbidden by the criminal laws, and the actor has done all within his power to cause this result to occur.^[13]

B.14 It would, perhaps, be more accurate to say, in the case of a D who believes (wrongly, as it turns out) that a result will occur, that he or she has 'accepted' that that result will happen, rather than that he or she has 'chosen' to bring it about and done all within his or her power to bring it about. Even with that refinement, however, the force of the point made in the commentary remains largely undiminished.

B.15 Take the classic example of the man who puts a bomb on a passenger plane, setting it to explode at a time when, as he knows, the plane will be in mid-air. He does this, not directly to kill, but in order to claim on his insurance policy for the loss of the bag in which the bomb was contained. He does not, then, directly intend to kill the passengers. If by a miracle, they all survived but his bag was destroyed he would regard himself as having successfully achieved his aim. Has he attempted to murder the passengers, if the miracle occurs?

B.16 It is not wrong to convict him of attempting to murder the passengers. As the Canadian Law Reform Commission puts it, 'attacks on basic values mounted only as…inevitable side-effects of some other actual goal are none the less attacks'.^[14] Such is the extreme recklessness with which D endangers the passengers' lives that, in the absence of a crime of reckless endangerment of life, it is right that he should be regarded as attempting the kill the passengers.

B.17 In summary, D should be regarded as attempting to kill V both when killing V is his or her purpose, and when D believes that the steps he or she is taking must inevitably entail V's death.

What must be intended in an attempted murder case?

B.18 Under existing legal principles, attempted murder requires an intention to kill.^[15] Murder itself requires, at present, only an intention to do really serious bodily harm. However, it would not make much sense to say that the person who does what they can to fulfil an intention to inflict really serious bodily harm attempts murder. Such a person attempts to inflict really serious - grievous - bodily harm. This is an attempt to commit a wrong (maliciously inflicting grievous bodily harm) that is a crime in its own right.^[16] If there were no offence of maliciously inflicting grievous bodily harm, then perhaps there would be a case for regarding an attempt to inflict it as an attempt to commit 'murder'. However, the point is purely academic.

B.19 Under our recommendations, the mental element for first degree murder will be satisfied by proof of an intention to kill or by proof of an intention to do serious injury in the awareness that there is a serious risk of causing death. If someone does a more than merely preparatory act towards killing, then they should be guilty of attempting first degree murder. What if they attempt to do serious injury, in the awareness that there is a serious risk of causing death? Should that be treated as attempted first degree murder?

B.20 There may be some attractions, in point of simplicity, in making the mental element for attempted first degree murder the same as for first degree murder. None the less, we are not currently minded to suggest that the fault element for attempted first degree murder should be anything less than the intention to kill. The current legal position should be maintained.

B.21 In a criminal attempt, D's fault element – his or her intent – should be such that, in successfully carrying out that intent, he or she would necessarily complete the offence, by bringing about the result whose occurrence is essential to its completion.^[17] In first degree murder cases, this condition can obviously only be satisfied if D intends to kill. For, only in carrying out that intent (understood to include doing something thought virtually certain to bring about death) would D necessarily complete the offence.

B.22 D can successfully carry out an intention to cause serious injury, in the awareness that there is a serious risk of causing death, without necessarily causing any deaths, just as D can successfully carry out an intention to do grievous harm simpliciter without necessarily causing any deaths. So, in these cases, the condition set out in paragraph B.21 is not satisfied. Accordingly, D should not be found guilty of attempted first degree murder, where his or her intention was only to inflict serious injury, even if he or she was aware of a serious risk of causing death.

Note 1    As part of a separate project, the Commission is currently reviewing the law governing attempts to commit crimes. We are likely to recommend that the elements of a criminal attempt remain broadly as they are, albeit with some refinements necessary to make them clearer.    [Back]

Note 2    It extends to an intention to do serious harm, with an awareness that there is a serious risk of causing death.    [Back]

Note 3    This analysis is drawn largely from the excellent discussion of criminal attempts in R A Duff, Criminal Attempts (1996) pp 17 to 25.    [Back]

Note 4    (1951) 35 Cr. App. R. 141.    [Back]

Note 5    (1990) 90 Cr. App. R. 226.    [Back]

Note 6    See Part 3.    [Back]

Note 7    [1976] QB 1.    [Back]

Note 8    [1976] QB 1, 11.    [Back]

Note 9    (1990) 90 Cr. App. R. 226.    [Back]

Note 10    Above, 228 to 229.    [Back]

Note 11    ( 5.01(1)(b).    [Back]

Note 12    Law Reform Commission of Canada, Working Paper No. 45, Secondary Liability (1985), 29.    [Back]

Note 13    Commentary to ( 501, 305.    [Back]

Note 14    Law Reform Commission of Canada, Working Paper No. 45, Secondary Liability (1985), 29.    [Back]

Note 15    Whybrow (1951) 35 Cr. App. R. 141.    [Back]

Note 16    Contrary to the Offences Against the Person Act 1861, s 20. If D wounds another with intent to cause grievous bodily harm, he or she can be charged with a specific offence contrary to s.18 of the 1861 Act. That has a discretionary life maximum sentence, whereas an attempt to inflict grievous bodily harm, however close to success, has the same maximum as the maximum sentence for s.20 (five years). This is yet another of the anomalies that beset the Offences Against the Person Act 1861.    [Back]

Note 17    R A Duff, Criminal Attempts (1996) pp 24 to 25.    [Back]