R v Tosti and White

Facts

The defendants went to a barn with oxyacetylene cutting equipment, which they had hidden nearby. They examined the door and its lock and were found at the barn before they had begun to cut or force an entry.

History

They were convicted of attempted burglary after the trial judge ruled that there was evidence upon which the jury could find that their acts were more than merely preparatory. They appealed against that conviction to the Court of Appeal.

Issue

Whether, on the evidence, the acts of the defendants could be found to be more than merely preparatory to the commission of burglary, within section 1(1) of the Criminal Attempts Act 1981.

Held

Appeals dismissed and the convictions for attempted burglary upheld.

Ratio

• Under section 1(1) of the Criminal Attempts Act 1981 an act can be more than merely preparatory without being the last act the defendant needed to take before committing the full offence.
• Where a defendant has reached the target premises, prepared the means of entry and examined the point of entry, a jury may find that he has moved from preparation to the execution of the offence, even though he has not yet started to use the equipment.
• Whether the acts are more than merely preparatory is a question of fact for the jury once the judge is satisfied that there is evidence on which a reasonable jury could so find.

Key reasoning

• The statutory wording replaced the older last act test, so it was no answer that further acts were required before the burglary could take place.
• The defendants had gone beyond planning and travelling and had embarked on the offence itself by going to the barn, hiding the equipment and examining the entrance.
• The judge was entitled to leave the question to the jury because reasonable jurors could regard those steps as the start of the crime proper.

Where it fits in the module

Topic 7 on inchoate liability is built around the question of how early the law should intervene against a person who has not yet harmed anyone. Tosti is a standard example of the more than merely preparatory test, showing how the courts apply a vague statutory phrase to a burglary on the threshold and where the line between preparation and attempt falls.

Criticisms

• The test of more than merely preparatory is vague and leaves it to the jury, so similar facts may produce different results and defendants have little notice of when they cross the line.
• Convicting those who have not started to cut raises the question whether the law over-extends liability to the stage when the defendant might still have turned back.
• Reasoning in terms of embarking on the crime proper replaces one metaphor with another and does not supply a principle for assessing the closeness of the act to the offence.