R v Shivpuri

Facts

The defendant took delivery of a package which he believed contained a prohibited drug, either heroin or cannabis, and was arrested. In fact the package contained harmless vegetable matter, and it was agreed that it was not a prohibited drug.

History

The defendant was convicted of attempting to commit an offence concerning dealing in prohibited drugs, contrary to section 1 of the Criminal Attempts Act 1981. The Court of Appeal (Criminal Division) dismissed his appeal and he appealed to the House of Lords.

Issue

Whether a person can be convicted of an attempt where the facts are such that the full offence could not be committed, here because the substance was not a prohibited drug, and whether the earlier decision in Anderton v Ryan was wrong and should be departed from.

Held

Appeal dismissed and the conviction upheld. Anderton v Ryan was overruled under the Practice Statement of 1966.

Ratio

• Section 1 of the Criminal Attempts Act 1981 applies where the facts are such that the commission of the full offence is impossible; a person who intends to commit an offence and does an act which is more than merely preparatory is guilty of an attempt on the facts as he believes them to be.
• It is not a defence that the substance involved was not a prohibited drug, since the defendant did the act with the intention of dealing in a drug he believed to be prohibited.
• The distinction in Anderton v Ryan between objectively innocent acts and others is unworkable and contrary to the statute, and the earlier decision should be overruled.

The judgments

Key reasoning

• The statute directs the court to look at what the defendant intended and what he did, and section 1(2) and (3) expressly address the case where the full offence is impossible.
• The test of an objectively innocent act could not be applied coherently, because every act is innocent in isolation and takes its character from the intention behind it.
• It was appropriate to use the Practice Statement of 1966 to overrule the earlier decision, given that it was wrongly decided and was causing difficulty in the courts.

Where it fits in the module

In Topic 7 on inchoate liability, Shivpuri frames the central question about whether the law punishes dangerous acts or dangerous intentions. It defines the subjective approach that dominates attempts and raises the question whether liability for impossible attempts risks punishing thought.

Criticisms

• Punishing a defendant for attempting what could not be done risks punishing mere criminal intention where the defendant has done no harm and posed no objective danger.
• The rejection of any objective limit means a person who tries to kill by sticking pins in a doll, or who mistakes legal for illegal acts, is arguably caught only because of subjective intention, with the line drawn by evidential rather than principled considerations.
• The decision treats the statute as clear when the earlier decision in Anderton v Ryan, delivered only a year before, had found the opposite, which suggests the wording left room for either view.