Attempts — R v Geddes

The defendant, Gary Geddes, was found by members of staff inside the boys' toilet block at a school in Brighton. He had no legitimate reason to be on the school premises and had not been invited or authorised to enter. When confronted, he fled the building without having made any contact whatsoever with any of the pupils at the school.

Upon investigation, Geddes was found to be in possession of a rucksack containing a significant collection of items: a length of rope, masking tape, and a large kitchen knife. The nature and combination of these items strongly suggested to the prosecution that he had entered the school with the intention of seizing and detaining a child, amounting to an intended false imprisonment.

Geddes was charged with attempted false imprisonment contrary to section 1(1) of the Criminal Attempts Act 1981. The offence of false imprisonment at common law consists in the unlawful and intentional or reckless detention or restraint of another person against their will. The prosecution's case rested on the proposition that Geddes had gone beyond mere preparation and had taken steps that were more than merely preparatory to the commission of that offence.

At first instance, Geddes was convicted. The trial judge left the matter to the jury on the basis that there was sufficient evidence to support a finding that the acts in question were more than merely preparatory. Geddes appealed against that conviction to the Court of Appeal on the ground that, as a matter of law, no reasonable jury properly directed could conclude that his actions had crossed the threshold from preparation into attempt.

The case therefore raised in stark form the question of how far along the continuum of criminal conduct a defendant must travel before criminal liability for an attempt attaches. Geddes had placed himself in a location associated with potential victims and had equipped himself with the tools of the intended offence, yet he had not made any move towards an identifiable victim. The facts presented the Court of Appeal with an opportunity to clarify the statutory threshold under the 1981 Act.

The central issue before the Court of Appeal was whether Geddes's acts — entering the school without authority, concealing himself in the boys' toilet block, and carrying rope, masking tape and a knife — were capable in law of constituting acts that were "more than merely preparatory to the commission of the offence" within the meaning of section 1(1) of the Criminal Attempts Act 1981, such that the question of attempt could properly be left to the jury.

A secondary but closely related issue was whether the trial judge had erred in failing to withdraw the charge from the jury. Even accepting the fullest possible reading of the prosecution's case, the Court of Appeal was required to determine whether, as a matter of law, the conduct proved could ever satisfy the statutory threshold — or whether it remained, irrespective of the defendant's evident intention, on the preparatory side of the line that the 1981 Act draws.

The Court of Appeal began its analysis by restating the statutory framework. Section 1(1) of the Criminal Attempts Act 1981 provides that a person is guilty of an attempt if, with intent to commit an offence, he does an act which is more than merely preparatory to the commission of that offence. The Act deliberately moved away from earlier common law formulations — in particular the "last act" test and the "proximity" test developed in cases such as R v Robinson — and imposed a single, purposive statutory test to be applied across all categories of attempted crime.

The Court placed considerable weight on R v Gullefer [1990] 1 WLR 1063, in which Lord Lane CJ had articulated the proper approach to the 1981 Act. In that case, the Court of Appeal held that the words "more than merely preparatory" required the defendant to have "embarked on the crime proper" — that is, to have moved from the preparatory phase and begun the execution of the criminal purpose itself. Lord Lane CJ's formulation in Gullefer drew on the classic distinction articulated by Stephen J between acts that are merely preparatory to the commission of a crime and acts that form part of a series of acts which would constitute the commission of the crime if not interrupted. The Court in Geddes treated this formulation as the authoritative gloss on the statutory language.

Applying that formulation, the Court of Appeal identified what it regarded as a useful, if not exhaustive, practical test for distinguishing preparation from attempt: had the defendant moved from the role of someone who was planning or equipping himself for the commission of an offence into the role of someone who was actually in the course of committing it? The court framed this in terms of whether the defendant had "got himself into a position" from which he could commit the offence, or whether he had actually "tried to commit it." Being in position, the court held, is characteristically a preparatory act; trying to commit it is the attempt.

The Court acknowledged — as it was bound to do — that the question of where precisely to draw the line is always a question of fact and degree. The statutory scheme under the 1981 Act leaves the primary determination to the jury, and appellate intervention is reserved for cases where the judge has wrongly permitted the question to go to the jury at all, or has wrongly withdrawn it. In the present case, the court treated the question as one of law because, on the prosecution's own account of Geddes's conduct, no properly directed jury could reasonably have concluded that the acts were more than merely preparatory.

A critical feature of the court's reasoning was its insistence on the absence of any contact or interaction between Geddes and any potential victim. Geddes had not approached any child; he had not spoken to, gestured towards, or in any way engaged with any pupil. The intended offence — false imprisonment — is by its nature a crime committed against a specific individual, requiring some act directed at that individual. The court reasoned that until the defendant had turned his attention from general preparation towards a specific victim, the execution of the offence had not commenced.

The prosecution had argued that Geddes's presence inside the school building, in a location where children were likely to be encountered, combined with the equipment he was carrying, was sufficient to cross the preparatory threshold. The court rejected this argument. The fact that Geddes had entered the relevant part of the building and was in a position to encounter a victim demonstrated purposeful preparation of a high order, but purposeful preparation — however advanced and however proximate to the eventual commission of the offence — remains preparation until the defendant actually embarks upon the commission of the offence itself.

The court distinguished Attorney-General's Reference (No 1 of 1992) [1993] 1 WLR 274, a case decided under the same statutory provision, in which the Court of Appeal had held that an attempt to rape could be established without proof of the last act proximate to the offence. In that case the defendant had dragged a woman up a bank and attempted to pull down her clothing; the court held that the jury were entitled to find an attempt even though penetration had not been attempted. The distinguishing factor in Geddes was that, in the Attorney-General's Reference, the defendant had already identified and engaged with a specific victim and had commenced the physical acts directed towards the commission of the substantive offence. Geddes had done neither.

The court was not unsympathetic to the concern that its approach might leave a gap in the law, given the evident danger that Geddes represented. It acknowledged that the facts disclosed a deeply troubling course of conduct and that the defendant's purpose was not in serious doubt. However, the court emphasised that the Criminal Attempts Act 1981 establishes a threshold that must be respected by the courts, and that the task of Parliament — not the judiciary — is to decide whether the law should extend criminal liability to earlier stages of the preparatory process. The court's function is to apply the statute as it stands.

The court further noted, by way of obiter observation, that each case involving the preparation/attempt distinction must ultimately be resolved on its own facts. No bright-line rule can be stated that will resolve every future case, and the courts must be sensitive to the nature of the substantive offence in question. Some offences, by their nature, permit a relatively early identification of the point of commencement; others require a more particularised analysis. The court's practical formulation — whether the defendant has moved from planning and equipping into executing — is intended as a guide to that analysis, not a substitute for it.

The court also observed that the absence of a specific identified victim at the moment of intervention was itself a significant indicator of the preparatory character of the acts. False imprisonment, as a crime against the person, presupposes a victim. Where the defendant has not yet identified, approached, or engaged with any person who could be the victim of the intended offence, it is difficult to say that the commission of the offence has commenced. The defendant is, at that point, still at the stage of general preparation for a future crime, the precise victim of which remains undetermined.

The Court of Appeal allowed Geddes's appeal and quashed his conviction for attempted false imprisonment. The court held that, on the facts proved by the prosecution, the defendant's acts were merely preparatory to the commission of the offence and were not capable, as a matter of law, of constituting acts that were more than merely preparatory within the meaning of section 1(1) of the Criminal Attempts Act 1981. The trial judge had accordingly erred in leaving the matter to the jury.

The court held that, although Geddes's intention was apparent and his preparation was advanced, he had not moved from the preparatory into the executory phase of the offence. He had not approached, communicated with, or directed any act towards any potential victim. His presence in the building and his possession of the relevant equipment remained acts of preparation, however proximate to the intended offence those acts might have been.

R v Geddes is the leading authority in English criminal law for the restrictive interpretation of the "more than merely preparatory" test under section 1(1) of the Criminal Attempts Act 1981. It is regularly cited as establishing the principle that neither proximity to the intended offence nor the evident purpose of the defendant is sufficient to convert preparatory acts into a criminal attempt: what is required is that the defendant must actually have embarked on the commission of the offence itself. The case is an essential starting point in any analysis of attempt liability and features prominently in undergraduate criminal law courses and professional examination syllabi.

The decision has attracted both approval and criticism in academic literature. Those who approve of the decision emphasise the importance of maintaining a principled boundary between preparation and attempt, and the constitutional impropriety of extending attempt liability by judicial construction beyond what the statutory language will bear. Critics argue that the outcome demonstrates an unsatisfactory gap in the law, since a defendant whose criminal purpose is manifest and whose preparatory acts are advanced may escape attempt liability entirely. These critics note that Parliament has responded to comparable gaps in other areas — for example through the offences created by the Sexual Offences Act 2003, which criminalise specific preparatory acts directed at children — but that no equivalent provision covers the facts of Geddes precisely.

The practical formulation offered by the court in Geddes — distinguishing between a defendant who has "got into position" and one who has "tried to commit the offence" — has been applied and refined in subsequent decisions. It has proved particularly useful in cases involving offences against the person, where the identification of a specific victim is a natural marker of the transition from preparation to attempt. The case is read alongside R v Gullefer [1990] 1 WLR 1063 and Attorney-General's Reference (No 1 of 1992) [1993] 1 WLR 274 to give students and practitioners a triangulated picture of the statutory threshold across different factual scenarios.

From a policy perspective, Geddes illustrates the tension inherent in the law of attempts between the principle of legality — which cautions against criminalising conduct that has not yet produced harm — and the protective function of criminal law, which seeks to intervene before harm occurs. The case demonstrates that, under the current statutory framework, that tension is resolved in favour of the principle of legality. Where the legislature wishes to extend liability to earlier stages of preparation — as it has done selectively — it must do so expressly. In the absence of such express provision, the courts apply the section 1(1) threshold with consistency and restraint, and Geddes remains the clearest illustration of that approach.