Attorney-General Reference (No 3 of 1992)

Facts

The defendants threw lit petrol bombs from a car in the direction of a group of people and nearby property. The bombs did not cause damage and no one was hurt. They were charged with attempted aggravated arson, an offence which involves damaging property by fire and being reckless as to whether the life of another would be endangered.

History

At trial the judge ruled that the prosecution had to prove an intention to endanger life, and, finding that this could not be proved, directed the jury to acquit. The Attorney General then referred the point of law to the Court of Appeal.

Issue

Whether on a charge of attempted aggravated arson the prosecution must prove that the defendant intended to endanger life, or whether it is sufficient to prove that he intended to damage property and was reckless as to whether life would be endangered.

Held

The reference was answered in favour of the Attorney General. Intention to damage property by fire, together with recklessness as to the endangering of life, is sufficient for attempted aggravated arson.

Ratio

• The mental element of an attempt is an intention to commit the offence, but this means intending to do the acts that would constitute the offence. It does not require the defendant to intend each circumstance or consequence for which the full offence requires only recklessness. Where recklessness as to a circumstance is enough for the completed offence, it is also enough for the attempt.

Key reasoning

• An attempt requires the defendant to have intended to bring about the consequence or conduct that the offence prohibits, and in aggravated arson the offence is the damage to property.
• The endangerment of life in the aggravated offence is a circumstance or a further consequence for which the full offence requires only recklessness, so there is no reason to demand more for the attempt than the full offence requires.
• The decision of the trial judge to require intention as to danger to life would make an attempted offence harder to prove than the offence itself.

Where it fits in the module

In the Inchoate Liability topic the case is central to the question of whether an attempt demands a higher mental element than the full offence. It should be read with the Criminal Attempts Act 1981 and with the earlier decision of the Court of Appeal in Khan, which applied a similar approach to attempted rape. Students should debate whether the rule is justified and consistent with the principle that an attempt is a failed commission of the offence.

Criticisms

• The rule seems to conflict with the statutory requirement of intent to commit the offence, since it allows a conviction for attempt where the defendant did not intend a necessary element of the full offence.
• The reasoning draws a line between intention as to conduct and recklessness as to circumstance that is difficult to justify, and the distinction between consequences and circumstances is itself uncertain.
• It has been argued that a defendant who is only reckless should not be treated as having attempted an offence, because the label of attempt suggests a settled purpose to bring the harm about.