R v Gullefer

Facts

The defendant had placed a bet on a greyhound at a track. When he saw that the dog was losing, he jumped onto the track, intending to distract the dogs so that the race would be declared void and he would be entitled to have his stake returned.

History

He was convicted at trial of attempted theft of the stake money and appealed.

Issue

Whether the act of interfering with the race was more than merely preparatory to the theft of the stake from the bookmaker, within s 1(1) of the Criminal Attempts Act 1981.

Held

Appeal allowed and the conviction quashed. The defendant had not done an act which was more than merely preparatory to the commission of the offence of theft.

Ratio

• An act is more than merely preparatory under s 1(1) of the Criminal Attempts Act 1981 only when the defendant has gone beyond preparation and has embarked on the crime proper; conduct designed to bring about a state of affairs in which the offence could later be committed, such as getting the race declared void, is preparatory.

The judgments

Key reasoning

• Section 1(1) of the 1981 Act asks whether the act was more than merely preparatory, a question of fact for the jury but one the judge must decide is capable of being answered yes.
• The defendant was at most trying to create the circumstances in which he could claim his money back, and had not yet begun to take any step towards the bookmaker from whom the stake would be recovered.
• Had he gone to the bookmaker and demanded the stake, he would have embarked on the offence itself, but running on the track was an earlier step.

Where it fits in the module

Topic 7 on inchoate liability deals with criminal attempts and the question of how close to the completed offence the defendant must have come. The case is a staple example of the actus reus of attempt under the 1981 Act, which replaced the common law tests with a statutory phrase that is not defined. The debate it illustrates is whether the more than merely preparatory test, as read in this case, is too restrictive to protect against dangerous conduct.

Criticisms

• The embarked on the crime proper formulation substitutes a new phrase for the statutory words and is no easier to apply, so the line between preparation and attempt remains unpredictable.
• Treating the interference with the race as merely preparatory arguably misdescribes it, since it was the only act the defendant needed to perform to put the plan into operation, which suggests that the test is too demanding.
• The test is applied as though the offence were a single transaction with a defined start, which fits poorly with offences like theft where the acts of the defendant before the final step may themselves be dishonest and dangerous.