United Kingdom House of Lords Decisions

Die Mercurii, 21° Novembris 1973

Parliamentary Archives,
HL/PO/JU/4/3/1243

HOUSE OF LORDS

HAUGHTON

v.
SMITH




Lord Chancellor
Lord Reid
Lord Morris of Borth-y-Gest
Viscount Dilhorne
Lord Salmon




Lord Chancellor : Lord Hailsham of Saint Marylebone

my lords:

The Respondent to this appeal was convicted at the Liverpool Crown Court
on the 28th September. 1972, of attempting to handle stolen goods exactly
twelve months previously. He was sentenced to twelve months' imprisonment
and an earlier suspended sentence was activated. The Court of Appeal
Criminal Division quashed his conviction, certified that a question of law of
general public interest was involved and gave leave to appeal. Notwithstand-
ing the quashing of his conviction, his continued detention was directed under
s. 37(2) of the Criminal Appeal Act, 1968. We were told during argument
that the result of the proceedings was of no more than academic interest to
the Respondent himself since he is already serving a sentence, or sentences,
which would more than cover the terms imposed in the present case. This
enabled counsel to deal with the questions of law involved in an admirable
atmosphere of detachment combined with a commendable zeal to extend the
frontiers of legal knowledge.

The facts on which the present proceedings were founded are well
summarised in the judgment of the Lord Chief Justice in the Court of Appeal.
In the autumn of 1971, a considerable quantity of corned beef was stolen from
a well-known firm in Liverpool. Some days later, a hopelessly overloaded
van was noticed by the police travelling south. They stopped the van and
found the corned beef inside. The van was so badly overloaded, that part
of the cargo had to be removed, but it was then allowed to go on with the
remainder of the load and with two policemen concealed inside, and one
disguised policeman beside the driver. The object was to catch the London
receivers by using the van, and its load, as a decoy. After a rather adventurous
journey, the van arrived by a circuitous route at a rendezvous on the Ml at
the Scratchwood Service Area in Hertfordshire, where it was met, or joined,
by the Respondent and at least one other, evidently by arrangement, and then
driven on to London under the Respondent's direction, but with the police
still on board. The Respondent played a prominent part in assisting in the
disposal of the van and its load and thus handled the goods within the
meaning of the Theft Act, 1968, s. 22. Finally the trap was sprung and
various members of the conspiracy arrested. Other members of the gang
were tried and dealt with separately. But the Respondent was tried later and
dealt with in the present proceedings after the first trial had been disposed of.

There were two counts in the indictment. The second was a charge of
conspiracy with persons unknown to handle stolen goods. This, in the light
of the jury's subsequent verdict, could hardly have failed. For reasons I am
quite unable to understand, the prosecution did not proceed with this
charge and the defence prudently secured a directed verdict of not guilty.
The first charge was one of attempting to handle the stolen goods. But in
this, too, the prosecution do not seem to have thought things through. The
completed offence of handling was not charged since the prosecution were
of the opinion that, by the time the goods were handled, they were no longer
to be treated as stolen, because in the view taken, they were restored to law-
ful custody within the meaning of s. 24(3) of the Theft Act, 1968, after the
police had prepared the trap. Whether this was in truth so, is, I think, open
to question, but it is not possible to go back on this concession now, or even
to enquire how wise it was to have made it. But, if the goods were in truth
restored to lawful custody, as the prosecution supposed and conceded, one
would have thought that a count for theft or attempted theft of them would



A

2

have been appropriate, and, like the charge of conspiracy, ought properly
to have succeeded. But, as it was not contained in the indictment, I do not
think it would be open to this House to substitute a verdict of theft or
attempted theft under the combined provisions of the Criminal Appeal Act,
1968, s. 3 and the Criminal Law Act, 1967, c. 6(3) and (4). See, for instance,
Woods [1969] 1 Q.B. 447 ; Springfield [1969] 53 Cr. App. R. 608, which I am
inclined to think establish that an alternative verdict under s. 6(3) would not
have been open to the jury, without a separate count in the indictment. At the
trial, the respondent told a story which was not believed by the jury, but his
counsel took advantage of the position in which the prosecution had placed
itself to submit to the Court the formidable argument that a man could
hardly be convicted of attempting to handle stolen goods when the goods were
not stolen at the time of the attempted handling. This submission failed
before the trial judge, but it succeeded before the Court of Appeal and, in
my opinion, it succeeds here too.

I was at first inclined to think that s. 22 of the Theft Act, 1968, was drafted
in such a way as to permit the construction that to be stolen for the
purpose of s. 22 (1) it was sufficient that the goods had been stolen without
continuing to be stolen at the time of the handling, provided, of course, that
the accused believed them at the time of the handling to be stolen. I thought
that the expression " believed " in the subsection aided the view that it could
cover a state of facts where the defendant believed the goods to be stolen
when they were not in fact still stolen at that moment of time. But, on
consideration, I am sure that this would be a false construction, and that the
expression " believed " was inserted to guard against acquittals which had
taken place under the former Larceny Act when it was necessary to prove
knowledge that the goods were stolen and belief was not enough. If I were
not already certain that this was the true meaning of s. 22 (1), the provisions
of s. 24, and, in particular, s. 24(3), would, I think, clinch the matter. In
my view, it is plain that, in order to constitute the offence of handling, the
goods specified in the particulars of offence must not only be believed to
be stolen, but actually continue to be stolen goods at the moment of handling.
Once this is accepted as the true construction of the section, I do not think
that it is possible to convert a completed act of handling, which is not itself
criminal because it was not the handling of stolen goods, into a criminal act
by the simple device of alleging that it was an attempt to handle stolen goods
on the ground that at the time of handling the accused falsely believed them
still to be stolen. In my opinion, this would be for the courts to manufacture
a new criminal offence not authorised by the legislature.

This would be enough to decide the result of this appeal, but both counsel
invited us to take a wider view of our obligations, and, since the question
was discussed by the Court of Appeal in general terms and since I believe
that the result of our decision is to overrule a number of decided cases, at least
to some extent, I feel bound to accede to this invitation. The question certified
by the Court of Appeal was:

" If stolen goods are returned to lawful custody and thus cease to be
" stolen by virture of s. 24(3) of the Theft Act 1968 can a person who
" subsequently dishonestly handles goods believing them to be stolen be
" guilty of the offence of attempting to handle stolen goods? "

I have already given a negative answer to this question, but the range of the
discussion before us demands a wider consideration of the principles
involved.

An attempt to commit a criminal offence is itself a criminal offence at
common law, and by s. 6(4) of the Criminal Law Act. 1967, it remains an
offence as an attempt notwithstanding that the accused person is shown to
have been guilty of the completed offence. But what is an attempt? The
earliest attempt at definition in comparatively modern times is in Eagleton
(1855) Dears. C.C. 515 at p. 538 per Parke B. when he said:

" The mere intention to commit a misdemeanour is not criminal.
" Some act is required, and we do not think that all acts towards com-
" mitting a misdemeanour are indictable. Acts remotely leading towards
" the commission of the offence are not to be considered as attempts to



3

" commit it, but acts immediately connected with it are; and if. in this
" case, after the credit with the relieving officer for the fraudulent over-
" charge, any further step [emphasis his] on the part of the defendant
" had been necessary to obtain payment .... we should have thought
" that the obtaining credit... would not have been sufficiently proximate
" to the obtaining the money. But, on the statement in this case, no
" other act on the part of the defendant would have been required. It
" was the last act, depending on himself, [emphasis his] towards the pay-
" ment of the money, and therefore it ought to be considered as an
" attempt."

A more modern definition is to be found in the judgment of Lord Parker
C.J. in Davey v. Lee [1968] 1 Q.B. 366 at p. 370 where he said:

" 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, where
" it says that:

"' An attempt to commit a crime is an act done with intent to
"' commit that crime, and forming part of a series of acts which
"' would constitute its actual commission if it were not
"' interrupted.'

" As a general statement that seems to be right, although it does not
" help to define the point of time at which the series of acts begins.
" That, as Stephen said, depends upon the facts of each case.

" A helpful definition is given in paragraph 4104 in the [then] current
" edition of Archbold's Criminal Pleading, Evidence and Practice,
" where it is stated in this form:

" ' It is submitted that the actus reus necessary to constitute
" ' an attempt is complete if the prisoner does an act which is a
" ' step towards the commission of a specific crime, which is
" ' immediately and not merely remotely connected with the com-
" ' mission of it, and the doing of which cannot reasonably be
" ' regarded as having any other purpose than the commission
" ' of the specific crime.' "

Before proceeding further, I desire to make an observation on the expression
" actus reus " used in the quotation above. Strictly speaking, though in
almost universal use, 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. Before the understanding of the latin tongue
has wholly died out of these islands, it is as well to record this as it has
frequently led to confusion. From the two definitions cited above, I derive the
following propositions relevant to the present appeal.

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
   
   

4

of proximity at all, although, as will be seen, many of the arguments
canvassed involve a discussion of it. Obviously whenever the test of
proximity becomes crucial in a particular case, difficult questions of fact and
degree will arise which will call for considerable skill on the part of the
trial judge in directing the jury. I do not think these problems arise here.

In his discussion in the present case of the legal implications of inchoate,
but uncompleted, sequences of actions in cases which might or might not
amount to criminal attempts, Lord Widgery C.J. attempted to analyse
them into two categories (see [1973] 2 W.L.R. at 944) namely:

(1) "The type of case where the accused has embarked on a course
" of conduct which, if completed, will result in an offence but for some
" reason breaks off that course of conduct and never completes the
" action required to amount to the offence."

In this first class of case, Lord Widgery classified the " pickpocket who puts
" his hand in a man's pocket only to find it empty; the burglar who is
" disturbed by the police when he is in the process of trying to break open
" the window; the safebreaker who finds when he gets to the safe, it is too
" difficulty for him and he cannot open it."

" In general", and Lord Widgery emphasised that he dealt only in
generalities in this context, he thought " a charge of attempt can properly be
" laid in that type of case". But it was otherwise, he thought, in the
second class of case which he described as follows:

(2) " Where the accused has meticulously and in detail followed every
" step of his intended course believing throughout that he was com-
" mitting a criminal offence and when in the end it is found he has
" not committed a criminal offence because in law that which he planned
" and carried out does not amount to a criminal offence at all."

Lord Widgery placed the present case in this second class and, after discuss-
ing a number of divergent authorities, came to the conclusion that in such
a case a criminal attempt had not been committed.

With respect, I do not altogether agree that this dual classification is
adequate, and if it were, I am not quite sure why all the examples given
should be classified as they were. I note that in the New Zealand case of
Donnelly [1970] N.Z.L.R. 980, which, except in so far as it relates to the
construction of the relevant New Zealand Statutes, is very much on all
fours with this, Turner J., (at p. 990) adopts a six-fold classification. He
says:

" 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 any act sufficiently overt to amount to an attempt.
" Second, he may change his mind, but too late to deny that he had
" got so far as an attempt. Third, he may be prevented by some
" outside agency from doing some act necessary to complete commission
" of the crime—as when a police officer interrupts him while he is
" endeavouring to force the window open, but before he has broken
" into the premises. Fourth, he may suffer no such outside interference,
" but may fail to complete the commission of the crime through
" ineptitude, inefficiency or insufficient means. The jemmy which he
" has brought with him may not be strong enough to force the window
" open. Fifth, he may find that what he is proposing to do is after all
" impossible—not because of insufficiency of means, but because it is
" for some reason physically not possible, whatever means be adopted.
" He who walks into a room intending to steal, say, a specific diamond
" ring, and finds that the ring is no longer there, but has been removed
" by the owner to the bank, is thus prevented from committing the
" crime which he intended, and which, but for the supervening physical
" impossibility imposed by events he would have committed. Sixth,
" he may without interruption efficiently do every act which he set out
" to do, but may be saved from criminal liability by the fact that what
" he has done, contrary to his own belief at the time, does not after
" all amount in law to a crime."

5

On the whole, though I hope it will never be subjected to too much analysis,
as it is merely a convenient exposition and illustration of classes of case
which can arise, I find this classification more satisfactory than Lord
Widgery's dual classification. Applying the three principles derived from
my primary definitions, I would seek to obtain the following results. (1) In
the first case no criminal attempt is committed. At the relevant time there
was no mens rea since there had been a change of intention, and the only
overt acts relied on would be preparatory and not immediately connected
with the completed offence. (2) in the second case there is both mens rea
and an act connected immediately with the offence. An example would be
an attempted rape where the intended victim was criminally assaulted, but
the attacker desisted at the stage immediately before he had achieved
penetration. It follows that there is a criminal attempt. (3) The third
case is more difficult because, as a matter of fact and degree, it will depend
to some extent on the stage at which the interruption takes place, and
the precise offence the attempt to commit which is the subject of the charge.
In general, however, a criminal attempt is committed, assuming that the
proximity test is passed. (4) In the fourth case there is ample authority
for the proposition that, assuming the proximity test is passed, a criminal
attempt is committed. But here casuistry is possible. Examples were
given in argument of shots at an intended victim which fail because he is
just out of range, or because, as in the case of the well known popular
novel, " The Day of the Jackal ", the intended victim moves at the critical
moment, or when a dose of poison insufficient to kill is administered with
intent to murder. In all these cases the attempt is clearly criminal. (5) The
fifth case is more complicated. It is clear that an attempt to obtain money
by a false pretence which is not in fact believed, is criminal notwithstanding
that the consequences intended were not achieved. See Hensler (1870) 11 Cox
Crim. Cas. 570. The same would be true of an attempted murder when the
victim did not actually die for whatever reason. But I do not regard these as
true, or at least not as typical, examples of the fifth class. They belong rather
to the fourth, since the criminal had done all that he intended to do, and all
that was necessary to complete the crime was an act or event wholly outside
his control. The case of M'Pherson (1857) Dears. & B.C.C. 197 where the
conviction was quashed, may be regarded as simply a case where a man
was charged with one thing and convicted of another. But both the facts
and the reasoning of the judges are much closer to the example postulated
by Turner J. in Donnelly as typical of the fifth class, though Turner J.'s
own opinion to the effect that the attempt is criminal depends on the
terms of the New Zealand Statute and has no application to English Law.
In M'Pherson (supra) the reasoning of the English judges on English Law
was to the contrary. Cockburn C.J. said at p. 201 :

" Here the prisoner had the intention to steal before he went into the
" house ; but when he got there the goods specified in the indictment were
" not there ; how then could he attempt to steal those goods? There
" can be no attempt asportare unless there is something asportare ".
Baron Bramwell, anticipating the decisions in Collins (infra) said (ibid):

" The argument that a man putting his hand into an empty pocket
" might be convicted of attempting to steal, appeared to me at first
" plausible; but suppose a man, believing a block of wood to be a man
" who was his deadly enemy, struck it a blow intending to murder, could
" he be convicted of attempting to murder the man he took it to be? "
And, in giving judgment, Cockburn C.J. said:

" The word attempt clearly conveys with it the idea, that if the attempt
" had succeeded the offence charged would have been committed, and
" therefore the prisoner might have been convicted if the things men-
" tioned in the indictment or any of them had been there ; but attempting
" to commit a felony is clearly distinguishable from intending to commit
" it. An attempt must be to do that which, if successful, would amount to
" the felony charged ; but here the attempt never could have succeeded,
" as the things which the indictment charges the prisoner with stealing
" had already been removed—stolen by somebody else ".


And Bramwell B. was equally emphatic.




6

Clearly Cockburn C.J. and Bramwell B. were of the view that Turner J's
example of his fifth class of inchoate act was not a criminal attempt.
M'Pherson was followed in Collins (1864) 9 Cox Crim. Cas. 497 by a court
which also included Cockburn C.J. and Bramwell B. and was the identical
case postulated by Bramweli B. in the earlier case of a man putting his hand
in an empty pocket. Goodchild (1846) 2 Car. & K. 293 which is often
cited in a contrary sense, was not a case of attempt at all, but of the statutory
offence of using an instrument with intent etc.—a totally different conception,
because an attempt involves more than an intent.

It was not long, however, before the decision in Collins (supra) was
challenged by Lord Coleridge C.J. in Brown (1889) 24 Q.B.D. 357 at p. 359
as "no longer law ", but without giving reasons and in Ring (1892) 17 Cox
Crim. Cas. 491 at 492 (an early " mugging" case on the Metropolitan
Railway) with even greater emphasis and even fewer reasons. Since then
Collins has generally been held to be bad law. On this I express no concluded
opinion, but in general I regard the reasoning in M'Pherson and Collins as
sound and in general I would consider that "attempts" in Turner J's fifth
class of case are not indictable in English law, and I consider that the
purported overruling of Collins needs further consideration. In addition to
the reported cases, we postulated in argument a number of real and imaginary
instances of this class. In " The Empty Room ", Sherlock Holmes' enemy.
Colonel Maron, was induced to fire at a wax image of the detective silhouetted
in the window, though Holmes prudently rejected Inspector Lestrade's advice
to prefer a charge of attempted murder and so the matter was never tested;
in White [1910] 2 KB 124, a man who put a small quantity of cyanide in a
wine glass, too small to kill, was held guilty of attempted murder. This
was an example of the fourth of Turner J's cases and therefore criminal. But
quaere, what would have been the position if the glass administered had
contained pure water, even though the accused believed falsely that it
contained cyanide? We discussed the situation when a would be murderer
attempts to assassinate a corpse, or a bolster in a bed, believing it to be
the living body of his enemy, or when he fires into an empty room believing
that it contained an intended victim ; and we had our attention drawn
to an American case where the accused fired at a peephole in a roof
believed to be in use by a watching policeman who was in fact a few
yards away. In most of these cases, a statutory offence of some kind
(e.g. discharging a firearm with intent to endanger life) would be committed
in English law, but in general I would think that a charge of an attempt
to commit the common law offence of murder would not lie since, if
the contemplated sequence of actions had been completed (as in some of
the supposed instances they were) no substantive offence could have been
committed of the type corresponding to the charge of attempt supposed to be
laid. I get some support for this view from the summing up of Rowlatt J. in
Osborn (1920) 84 J.P. 63. But I prefer to rest on the principle above stated,
since Osborn was couched in more popular language than is appropriate
to what has become a somewhat theoretical discussion. At the end of the
day there must be a question of fact for the jury. The Judge may direct them
what facts, if established, could constitute an attempt, or would be evidence of
an attempt. The jury alone can decide whether there was an attempt.

(6) Turner J's sixth class of case was where a man efficiently does
" without interruption every act which he set out to do but is saved from
" criminal liability by the fact that what he has done, contrary to his own
" belief at the time, does not after all amount to a crime ". This is really
equivalent to Lord Widgery's second class. I have already explained that
I consider that the present appeal fails on the proper construction of s. 22
of the Theft Act, 1968. But I think that this is a special example of a wider
principle, and I agree with Turner J's conclusion about it.
In Collins (supra) Bramwell B. put the rhetorical question at p. 498:

" Suppose a man takes away an umbrella from a stand with intent
" to steal it, believing it not to be his own, but it turns out to be his
" own, could he be convicted of attempting to steal? "

In Villensky [1892] 2 QB 597 Lord Colridge C.J. in circumstances not
unlike the present, following Dolan (1855) Dears. 436. held that prisoners



7

could not be indicted under the old law for receiving stolen goods, and made
no reference to the possibility of a conviction for attempt.

In Williams [1893] 1 QB 320 at 321 the same Lord Chief Justice said
that 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. I do not agree
with the contrary opinion of Hawkins J. in the same case, even though
it was possibly supported by the rest of the Court. The same reasoning
would apply to a case of unlawful carnal knowledge (cf Waite [1892] 2 Q.B.
600), whether, as there, it was the male who was by reason of age incapable
in law of committing the offence, or the female who was in law incapable
by reason of her age of having it committed against her, and it would not,
in my view, matter in the latter case that the male falsely believed her to
be under age. Support for his view is to be found in Head [1959] A.C.83,
which was a charge of a completed offence in relation to a mental defective,
but counsel for the respondent made considerable play with the argument
a silentio to be derived from the fact that no-one suggested the possibility
of a conviction for an attempt. In my view, it is a general principle that
Turner J's sixth class of attempts are not criminal, not because the acts are
not proximate or because the intention is absent, but because the second of
the three propositions I derive from the two judicial definitions I cited
above is not satisfied. The acts are not part of a series " which would
" constiute the actual commission of the effence if it were not interrupted ".
In this event the often discussed question whether the legal impossibility
derives from a mistake of fact or law on the part of the accused is hardly
relevant.

This discussion enables me to deal with the cases cited in the judgment
of the Court of Appeal. Like Lord Widgery C.J., I disagreed with the
decision in Rojas (1961) 10 Cal. Rptr 465 and prefer the decisions in
Donnelly [1970] N.Z.L.R. 980 and Jaffe ((1906) 185 New York 496
overruling the decisions in the lower courts, cf. 98 New York Supplement
406). I agree with the decision in Percy Dalton (London) Ltd. (1949)
33Cr. App. R. 102, and particularly with the quotation from Birkett J. at
p. 110 cited by the Lord Chief Justice in the present case where he 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 something, which is thereafter done,
" and which is no crime, cannot be regarded as attempts to commit
" a crime ".

I would add to the last sentence a rider to the effect that equally steps on
the way to do something which is thereafter not completed, but which if
done would not constitute a crime cannot be indicted as attempts to commit
that crime. It is, of course, true that, at least in theory, some villains
will escape by this route. But in most cases they can properly be charged
with something else—statutory offences like breaking and entering with
intent &c., or loitering with intent &c., using an instrument with intent &c.,
discharging or possessing a firearm with intent &c., or as here, common
law offences like conspiring to commit the same offence as that the attempt
to commit which is charged, or even committing a substantive offence of
a different kind, as here, stealing or attempting to steal. It follows also
from what I have said that the reasoning in Miller and Page (1965)
49 Cr. App. R. 241 cannot be supported although, on the present definitions
in the Theft Act, the result might possibly have been the same for different
reasons. I would also add that I think Curbishley & Crispin (1970) 55
Cr. App. R. 310 is wrongly decided, and I respectfully dissent from the Lord
Chief Justice's view that it can be usefully distinguished on the facts
from the present case. If I am wrong about this, I would place it in the
fifth of Turner J's categories in Donnelly though on the view I take I think
it properly belongs to the sixth.

In the result, in my view, the appeal should be dismissed. The appellant's
costs will be met out of Central Funds. The respondent is, I understand,
legally aided. The question certified as of general public interest by the
Court of Appeal should be answered in the negative.




8

Lord Reid

my lords,

The charge against the Respondent was " attempted handling stolen
goods". That must mean an attempt to commit the crime created by
s.22 of the Theft Act, 1968. It is clear from the terms of that section and
of s.24(3), that the goods must be goods which have been stolen but have
not been restored to lawful custody before the commission of the offence.
It has been admitted, though perhaps wrongly, that the goods to which
the charge relates had been restored to lawful custody before the alleged
offence was committed. So there could be no offence under s.22 with
regard to them. There is a reference in the section to the accused believing
the goods to be stolen goods. But that does not widen the ambit or scope
of the section: it merely makes the section apply to a case where the
goods are, in fact, stolen goods but the accused does not know that but
only believes them to be so. -

But a theory has been evolved that there can be an attempt to commit
an offence although in fact that offence could not be committed. It is
said that if the accused does not know the true facts but erroneously believes
the facts to be such that his conduct would be an offence if the facts had
been as he believes them to be, then he is guilty of an attempt to commit
the offence.

In the case of a statutory offence that appears to me to be clearly wrong.
The only possible attempt would be to do what Parliament has forbidden.
But Parliament has not forbidden that which the accused did, i.e., handling
goods which have ceased to be stolen goods. The section defines both
the actus reus and the mens rea required to constitute the offence. Both
must be proved. Here the mens rea was proved but there was no actus
reus so the case is not within the scope of the section.

I suppose it would be said that attempt to commit any crime is a common
law offence. But how can an attempt to do something which has not been
forbidden by Parliament, and is not in itself a common law offence, be a
common law offence. No possible process of construction can make s.22
mean that if a person handles goods which are not stolen goods he commits
an offence if he believes them to have been stolen. So if this theory were
right the common law must, when the Act was passed, have created a new
crime which goes beyond the ambit of the statutory offence and is not
authorised by the statute; a crime which does not depend on what the
accused did but on what he erroneously believe that he was doing. The
objections both to the creation of such a crime and to its nature are obvious.

But the objections to the theory are by no means confined to statutory
offences. The theory appears to have been based on some plausible but
erroneous decisions of the last decade of the nineteenth century. Some
attempt has been made to pray in aid a few earlier decisions but they dealt
not with attempt but with intent which is quite a different thing. If doing
something with intent to procure a certain result is an offence, you can
certainly be guilty of that offence if you do that thing with that intent although
in the circumstances it was not possible to procure that result. All the
requirements of the statute are satisfied. An early example is R. v. Goodchild
(1846) 2 Car. & K. 293, where the offence was to administer a noxious thing
with intent to procure a miscarriage. It was no defence that the woman to
whom the noxious thing was administered was not with child. The question
now under discussion would only have arisen if the accused had administered
something quite harmless in the belief that it was a noxious thing.

Another case of a different kind sometimes cited in support of the theory is
R. v. Hensler (1870) 11 Cox. Grim. Cas. 570. The accused attempted to
obtain money by false pretences by sending a letter. The recipient was not
deceived. But the accused was convicted. The crime of obtaining money by
false pretences is unusual in that the last act constituting the crime is done not
by the criminal but by the victim. Here it was perfectly possible that when
the letter was sent the recipient might have been decived and have paid.



9

The accused had done all that he could do toward commission of the crime
but final commission of the crime had been prevented by the conduct of
the victim. This case appears to me to afford no support whatever to the
theory I am discussing. The point would have arisen if the letter had been
sent to a person who was dead. The accused would then have been attempting
something which was in the circumstances impossible.

Two cases decided about the middle of last century are quite inconsistent
with this theory—R. v. M'Pherson (1857) Dears & B. 197 and R. v. Collins
(1864) 9 Cox. Crim. Cas. 497. They have been fully examined by my
noble and learned friend, the Lord Chancellor, and I shall only add that the
reasoning of the learned judges who took part appears to me to be
convincing. But then the Court took a very unusual course. In R. v. Brown
24 Q.B.D. 375 and R. v. Ring (1892) 17 Cox. Crim. Cas. 491 it disapproved
the decision in Collins without giving any reasons. I cannot regard a
decision given without reasons as having any great authority and despite
the passing of 80 years I think that your Lordships are well entitled to
reverse these decisions if satisfied that they are wrong.

The immediate question was whether a pickpocket can be guilty of
attempted theft if he puts his hand into an empty pocket. My noble and
learned friend has quoted the observation of Bramwell B. that this is
plausible but unsound. The ordinary man would say without stopping
to think—of course he was attempting to steal. But if we stop and think—
one cannot just steal, one must steal something. So if there is nothing there
to steal there could be no theft, and we are back at the general question—
can you attempt to commit a crime in circumstances where the commission
of the crime is impossible?

What, then, is meant by an attempt to commit a crime? Normally, when
a person commits a deliberate crime he begins by making any necessary
preparations and then he sets out to take the various steps which culminate in
the final act which accomplishes the crime. But he may stop or be interrupted
at some stage. Then the question will be whether he has gone so far that
he can be said to have attempted to commit the crime. It is well settled
settled that mere preparation is not criminal. A few statutes have made acts
preparatory criminal but otherwise the accused must have gone beyond that
stage. It has often been said that to constitute an attempt the act must be
proximate to and not remote from the crime itself. But that is hardly
illuminating. It can be said that the accused must have begun to perpetrate
the crime. But no words, unless so general as to be virtually useless, can be
devised which will fit the immense variety of possible cases. Any attempted
definition would, I am sure, do more harm than good. It must be left to
common sense to determine in each case whether he accused has gone beyond
mere preparation.

But this theory attaches a very different meaning to the word " attempt".
The accused has done, as he did here, everything which he intended to do.
There is no question of drawing a line so that remote acts of preparation
are not attempts but acts proximate to the crime are attempts. The crime is
impossible in the circumstances, so no acts could be proximate to it. The
theory confuses attempt with intent. If the facts had been as he believed
they were the man would have committed a crime. He intended to commit
it. But he took no step towards the commission of a crime because there
was no crime to commit.

I would not, however, decide the matter entirely on logical argument.
The life blood of the law is not logic but common sense. So I would see
where this theory takes us. A man lies dead. His enemy comes along and
thinks he is asleep, so he stabs the corpse. The theory inevitably requires
us to hold that the enemy has attempted to murder the dead man. The
law may sometimes be an ass but it cannot be so asinine as that. And take
another case. A man marries a woman believing that her husband is still
alive ; but in fact he died last week. The theory requires us to hold him
guilty of attempted bigamy. Then suppose that the husband disappeared
some time ago. The man who marries the wife may have a variety of beliefs.
He may think it highly probable that the husband is still alive or he may




10

think it quite likely or he may think the chance that the husband is still alive
is small. In fact the husband is dead. I do not know how the theory would
deal with those three possible cases.

The theory is really an attempt to punish people for their guilty intention.
The man who stabs the corpse may be as deserving of punishment as a man
who attempts to murder a living person. The accused in the present case
may be as deserving of punishment as he would have been if the goods had
still been stolen goods. But such a radical change in the principles of our
law should not be introduced in this way even if it were desirable.

In my judgment this theory must be rejected. I think that the law was
properly stated in R. v. Percy Dalton Ltd. 33 Cr. App. R. 102.

" 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 something, which is thereafter done, and which is no
" crime, cannot be regarded as attempts to commit a crime."

I do not say that that is an exhaustive definition. It requires some
explanation or expansion in at least one class of case. A man may set out
to commit a crime with inadequate tools. He finds that he cannot break in
because the door is too strong for him. Or he uses poison which is not strong
enough. He is certainly guilty of attempt: with better equipment or greater
skill he could have committed the full crime. Or the person whom he
attempted to murder has moved a short distance away and he shoots at the
place where the person was a short time earlier. There may well be border-
line cases of that kind. We are not applying a rule but a principle and it
must be applied sensibly. I would not seek to lay down the law in detail
beyond what is necessary for the present case. I would answer the question
certified in the negative and dismiss the appeal.

Lord Morris of Borth-y-Gest

MY LORDS,

At the trial of the respondent the prosecution proceeded against him
on one count only. It was a count charging him with the offence of
attempting to commit the offence of handling stolen goods. Handling stolen
goods is a statutory offence. It was established as an offence by s.22 of the
Theft Act, 1968. A person handles stolen goods if (otherwise than in the
course of the stealing) knowing or believing them to be stolen goods he
dishonestly receives the goods, or dishonestly undertakes or assists in their
retention, removal, disposal or realisation by or for the benefit of another
person, or if he arranges to do so.

Some goods were stolen in Liverpool. The plan of those who were
connected with the theft was that the goods were to be taken by lorry to a
place in Hertfordshire where the driver of the lorry would be met by some
person or persons who would give directions or assistance in regard to the
further movement of the goods to, and their disposal in, the London area.
Before the goods reached the rendezvous in Hertfordshire they were, in
fact, seized by the police. That was in Warwickshire. It was accepted
by the prosecution that then and thereafter the goods were not to "be
" regarded as having continued to be stolen goods ". (See s.24 of the Theft
Act.) Arrangements were made, however, for the journey of the lorry (still
containing some but not all of the goods) to be continued to the meeting
place in Hertfordshire, though without any indication of police accompani-
ment. When the lorry reached the meeting place in Hertfordshire the
respondent (who had others with him) presented himself and. being quite
unaware of the events in Warwickshire, or of the concealed presence in the
lorry of police officers, took a leading part in making arrangements for the
future disposal of the goods.

In so acting was he attempting to handle stolen goods? In ordinary
parlance mention of attempting to do something generally denotes a failure

11

to do it. But at the meeting place in Hertfordshire the respondent did every-
thing that he had set out to do. Within the meaning and the wording of
s.22 he did handle the goods in question. When the lorry proceeded on
towards the London area he had, as he thought, carried out the duties which
had been assigned to him. He had assisted in the disposal of the goods.
He had done so dishonestly. He believed that the goods were stolen goods.
So he believed that he had handled stolen goods. But all unknown to him
he had done no such thing. He had not handled stolen goods. The goods
that he had, in fact, handled were not stolen. How, then, can it be said
that he attempted to handle stolen goods? His belief that the goods were
stolen did not make them stolen goods. Whatever other offence he may or
may not have committed, he had been saved from committing an offence
under s.22 in relation to stolen goods by the circumstance that his opera-
tions in Hertfordshire were not operations in relation to stolen goods. He
had intended dishonestly to handle stolen goods. He did all the physical
acts that he planned to do but those acts happened not to amount to the
criminal offence of handling stolen goods. To convict him of attempting to
handle stolen goods would be to convict him not for what he did but simply
because he had had a guilty intention. In my view, that would not be right.

Save in respect of certain so-called absolute offences it is a broad principle
of our law that what a man does does not make him a criminal unless he
has a guilty mind: but the presence of a guilty mind does not transform
what a man actually does into something that he has not done.

If a man forms the intention of killing X, and, finding X lying on a couch,
plunges a dagger into his heart only to find it established that X had died
a natural death some time previously, then he would not in fact have
killed X. His intentions would have been wicked but fortuitously he would
have been saved from committing the crime of murder. In my view, he
could not be convicted of attempting to do that which it had not been
possible for him to do. Another illustration of a situation in which a man's
guilty intention would not attract punishment for a crime was that pro-
pounded during the argument in R. v. Collins 9 Cox Crim. Cas. 497 by
Bramwell B. He instanced the case of a man taking an umbrella and having
the intent to steal it. The umbrella turning out to be the man's own property,
could he be convicted of attempting to steal it? I think not. As had been
said by Cockburn C.J. in R. v. M'Pherson Dears. & B. 197:

" The word attempt clearly conveys with it the idea, that if the attempt
" had succeeded the offence charged would have been committed ":

so also:

" An attempt must be to do that which, if successful, would amount
" to the felony charged."

The same line of thought was further expressed by Cockburn C.J. in R. v.

Collins (supra) when he said :

"... that an attempt to commit a felony can only be made out when,
" if no interruption had taken place, the attempt could have been carried
" out successfully, and the felony completed of the attempt to commit
" which the party is charged."

In argument very many situations were discussed in a consideration of the
types of cases where charges of attempt either could or could not be made. I
doubt whether it is possible or desirable to set out any complete classifica-
tion but, like my noble and learned friend, the Lord Chancellor, I consider
that the analysis contained in the judgment of Turner J. in Donnelly's case
[1970] N.Z.L.R. 980 is valuable. As I have had the advantage of reading in
advance the opinion prepared by my noble and learned friend, the Lord
Chancellor, and as I am in agreement with it, I do not consider that I would
serve any useful purpose by any further citation of the authorities to which
he refers. Of recent cases I consider that R. v. Miller 49 C. App. R. 241, and
R. v. Curbishly & Crispin 55 Cr. App. R. 310 were wrongly decided.

I would answer the certified point of law in the negative and I would
dismiss the appeal.

12

Viscount Dilhorne

MY LORDS,

The respondent was tried at Liverpool Crown Court in September, 1972,
on an indictment containing two counts. The first charged him with the
attempted handling of stolen goods, the particulars of offence alleging that
he had attempted to handle 890 cartons of corned beef "knowing
or believing "them to have been stolen.

The second count charged him with conspiracy; the particulars of offence
alleging that he had conspired with persons unknown dishonestly to assist
in the disposal of the cartons of corned beef " knowing or believing the same
to have been stolen ".

The beef was stolen in Liverpool. On the 28th September, 1971, a lorry
was stopped when travelling south in the vicinity of Sutton Coldfield by two
police officers on account of its condition. It was found to be carrying the
stolen beef. The lorry was driven to Sutton Coldfield Police Station and
there a plan was made to trap those persons who were to take delivery of
the stolen beef. Some of it was unloaded. Two policemen got in the back
of the lorry and another sat beside the driver who had been persuaded to
complete his journey. A police car followed the lorry. It was conceded by
the prosecution that on its journey to the rendezvous, the beef was in the
lawful custody of the police. S. 22(3) of the Theft Act provides that no
goods shall be regarded as having continued to be stolen goods after they
have been restored to the person from whom they were stolen or to other
lawful possession or custody. Presumably it was thought that with three
police officers passengers in the lorry driven by the driver who had driven
the stolen beef from Liverpool, the beef was in their lawful possession or
custody. Perhaps a different view might have been taken if the police had
merely followed the lorry. Whether or not it was necessary to make this
concession—and I am by no means sure that it was—it is unnecessary to
decide. The case has to be dealt with on the basis that the beef had ceased
to be stolen.

The driver drove to the rendezvous, the Scratchwood Service Station on
the M.1 and there the respondent came on the scene. It is not necessary
to go into any detail about what happened thereafter. It is sufficient to say
that the respondent directed the lorry where to go and the evidence showed
clearly that he was acting in concert with those who had planned to dispose
of the beef.

There had been an earlier trial of Dixon, the driver of the lorry and two
men called Mooney and Maeder. They were charged with conspiracy but
as they were convicted of other offences in relation to the corned beef, that
charge was not proceeded with and they were found not guilty of it. That
having been done, I appreciate that the respondent could not have been
charged with conspiring with them, but he was not charged with that but with
conspiring with persons unknown and I do not see that the acquittal of these
three on a charge of conspiracy was any bar to the prosecution of the
respondent on a properly framed charge of that offence.

If the beef was in the lawful custody of the police, then the respondent
might have been charged with attempting to steal it but the prosecution,
recognising that he could not be convicted of handling stolen goods, as it
was conceded that they had ceased to be stolen, thought fit, perhaps
encouraged by a text book, to charge him with attempted handling, the
particulars of offence alleging not that the goods were stolen but only that
he knew or believed them to be.

It is, in my opinion, clear that s.22(l) of the Theft Act, 1968, does not
make the handling of goods which are not stolen goods an offence if a
person believes them to have been stolen. The offence created by that
section is in relation to goods which are stolen and it is an ingredient of
the offence that the accused must know or believe them to have been
stolen. The word " believing " was, I think, inserted to avoid the possibility
of an accused being acquitted when there was ample evidence that he
believed the goods stolen but no proof that he knew they were.

13

The prosecution, having made the concession that the goods had ceased
to be stolen, were therefore right in thinking that the respondent could
not be convicted of handling stolen goods, and the question for decision in
this case is whether he can be convicted of attempted handling of stolen
goods when they were not in fact stolen but he believed them to be stolen.
It is not necessary to consider in this case whether the respondent's actions
amounted to an attempt or where only acts preparatory to an attempt.

Mr. Morgan, for the appellant, referred to a large number of cases, to
some of which I must now refer. In R. v. Goodchild (1846) 2 Car & K. 293
the accused was charged with using an instrument with intent to procure
a miscarriage. I do not consider it has any relevance to this case.

In R. v. Collins (1864) 9 Cox Crim.Cas. 497 it was contended that a pick-
pocket who put his hand into an empty pocket was not guilty of attempted
larceny. Cockburn C.J. delivering the judgment of the Court which con-
sisted of five judges including Bramwell B. held, following R. v. M'Pherson
(1857) 1 Dears. & B. 197, that:-

" an attempt to commit a felony can only be made out when, if
" no interruption had taken place, the attempt could have been carried
" out successfully, and the felony completed of the attempt to commit
" which the party is charged. In this case, if there was nothing in
" the pocket of the prosecutrix, in our opinion the attempt to commit
" larceny cannot be established. It may be illustrated by the case of a
" person going into a room, the door of which he finds open, for the
" purpose of stealing whatever property he may find there, and finding
" nothing in the room, in that case no larceny could be committed, and
" therefore no attempt to commit larceny could be committed."

In R. v. M'Pherson (supra) 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 and attempting
to steal the prosecutor's goods. It was held that the conviction was wrong
as there was no attempt to commit the felony charged within the meaning
of s. 9 of 14 & 15 Vict. c. 100.

That Statute of 1851 by s. 9 provided that a jury if it appeared that the
defendant did not complete the offence charged " but that he was guilty
" only of an attempt to commit it " might return a verdict of guilty of the
attempt.

In the course of the argument Coleridge J. and Cockburn C.J. drew
attention to the distinction between intent and attempt and in his judgment
Cockburn C.J. said :

" An attempt must be to do that which, if successful, would amount
" to the felony charged ; but here the attempt never could have
" succeeded, as the things which the indictment charges the prisoner
" with stealing had been already been removed—stolen by somebody
" else."

Presumably M'Pherson might have been charged with and convicted of
breaking and entering with intent to steal and Collins of loitering with
intent to steal.

In R. v. Rrown (18901 24 Q.B.D. 357 Lord Coleridge C.J. referred to
the unreported decision in R. v. Dodd where it was said that a person
could not be convicted of an attempt to commit an offence which he could
not actually commit and said:

" We are all ... of opinion that R. v. Dodd is no longer law. It
" was decided on the authority of R. v. Collins and that case, in our
" opinion, is no longer law."

In R. v. Ring (1892) 17 Cox Crim. Cas. 491, another pickpocket case.
Lord Coleridge again said that R. v. Collins was bad law and that that was
the view of nine judges. In neither of these cases were any reasons given
for that statement. In Brown no counsel appeared so there was no
argument. I do rot therefore regard these decisions as authoritative.

14

In 1879 a draft Criminal Code was produced, paragraph 74 of which
read as follows:

" Everyone who, believing that a certain state of facts exists, does
" or omits an act the doing of which would if that state of facts
" existed be an attempt to commit an offence, attempts to commit that
" offence, although its commission in the manner proposed was by
" reason of the non-existence of that state of facts at the time of the
" act or omission impossible ".

According to Archbold's Criminal Pleading 38 Ed. para 4111. the
Commissioners who drafted the Code declared that this proposition (although
irreconcilable with the decisions in Collins and M'Pherson), stated the
common law and it was perhaps on account of this that in Brown and Ring
it was stated that Collins was bad law.

Legislative effect has been given to this provision in New Zealand.
Section 72(1) of the Crimes Act, 1961, of that country is in the following
terms:

" Every one who, having an intent to commit an offence, does or
"omits an act for the purpose of accomplishing his object, is guilty
" of an attempt to commit the offence intended, whether in the
" circumstances it was possible to commit the offence or not."

There has been no similar legislation in this country.

In R. v. Williams [1893] 1 Q.B. Lord Coleridge C.J. held that a boy
charged with the rape of a girl of thirteen when it was proved that he was
under the age of fourteen could not be convicted of rape; " nor could
" he in my opinion ", he said,

" be convicted of attempting to do that which the law says he was
" physically incapable of doing ".

Hawkins J. and Cave J. appear to have doubted whether Lord Coleridge's
view was right and to have thought that the boy, although he could not
have been convicted of rape, might be convicted of the attempt.

So at this time it appears to have been the view of Lord Coleridge that
though a man might be convicted of attempting a crime which he could not
commit, of attempting to steal when there was nothing for him to steal, he
could not be convicted of attempting a crime which the law said he could
not commit.

In R. v. Percy Dalton (London) Ltd. (1949) 33 Cr. App. R. 102, the Court
of Criminal Appeal held that it was impossible to say on the same facts that
the company could be convicted of the attempt to sell goods above the
maximum permitted price when the completed transaction was no offence.

In my opinion, this was right and Collins and M'Pherson were rightly
decided for it is conduct that is normally made punishable as a criminal
offence, not just the belief of the accused. It may be morally he may
have sinned as much as a result of his belief but it is conduct that is made
punishable under our law. A man cannot attempt to handle goods which
are not stolen. A man taking his own umbrella from a club thinking it the
property of someone else does not steal. His belief does not convert his
conduct into an offence if his conduct cannot constitute a crime. In my view,
it matters not that the crime cannot be committed as a result of physical
imposibility, e.g. the absence of the property he wants to steal, or of legal
impossibility. In either case he cannot be convicted of an attempt when he
could not be convicted of the full offence if he had succeeded in doing all
that he attempted to do. Conduct which is not criminal is not converted into
criminal conduct by the accused believing that a state of affairs exists which
does not exist.

R. v. Miller & Page (1965) 49 Cr. App. R. 241 where the driver of a lorry
approached by the Appellants in that case to permit them to steal its load,
reported that to his employer and on his instructions took the lorry to the
appointed place and helped them to unload it, it was held that though they



15

could not be convicted of larceny as the goods were not taken against the
will of the owner, nevertheless they might be convicted of attempted larceny.
That case was, in my opinion, wrongly decided ; and so was R. v. Curbishley
(1970) 55 Cr. App. Cas 310 where a conviction for attempted handling of
stolen goods was upheld though at the time of the attempt the stolen goods
had been removed by the police and so had ceased to be stolen.

For these reasons in my opinion this appeal should be dismissed.

Lord Salmon

MY LORDS,

For the reasons given by my noble and learned friend, the Lord Chancellor,
I too would dismiss this appeal.

308145 Dd 896211 100 10/73 St S.