Anderton (Respondent)
v.
Ryan (A.P.) (Appellant) (On Appeal from a Divisional Court of
the Queen’s Bench Division))
JUDGMENT
Die Jovis 9° Maii 1985
Upon Report from the Appellate Committee to whom was
referred the Cause Anderton against Ryan, That the Committee
had heard Counsel on Thursday the 14th day of February 1985
upon the Petition and Appeal of Bernadette Ryan of 21
Hallwood Road, Wythenshawe, Manchester in the County of
Greater Manchester praying that the matter of the Order set
forth in the Schedule thereto, namely an Order of a
Divisional Court of the Queen’s Bench Division of Her
Majesty’s High Court of Justice of the 15th day of May 1984,
might be reviewed before Her Majesty the Queen in Her Court
of Parliament and that the said Order might be reversed,
varied or altered or that the Petitioner might have such
other relief in the premises as to Her Majesty the Queen in
Her Court of Parliament might seem meet; and Counsel having
been heard on behalf of Cyril James Anderton, Chief
Constable, Greater Manchester Police (on behalf of Her
Majesty) Respondent to the said Appeal, and due consideration
had this day of what was offered on either side in this
Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of a Divisional Court of the
Queen’s Bench Division of Her Majesty’s High Court of Justice
of the 15th day of May 1984 complained of in the said Appeal
be, and the same is hereby, Set Aside save as to Costs: and
that the Certified Question be revised and answered in the
following terms: “where a person dishonestly handles goods
in the belief that they are stolen goods but those goods are
not in fact stolen, that person is not liable to be convicted
of attempting dishonestly to handle stolen goods contrary to
section 1 of the Criminal Attempts Act 1981”: And it is
further Ordered, That the Costs of the Appellant and the
Respondent in respect of the said Appeal to this House be
paid out of central funds pursuant to section 6 of the Costs
in Criminal Cases Act 1973, the amount of such Costs to be
certified by the Clerk of the Parliaments: And it is also
further Ordered, That the Cause be, and the same is hereby,
remitted back to the Queen’s Bench Division of the High
Court of Justice to do therein as shall be just and
consistent with this Judgment.
Cler: Parliamentor:
HOUSE OF LORDS
ANDERTON
(RESPONDENT)
v.
RYAN (A.P.)
(APPELLANT)
(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN’S
BENCH DIVISION)
Lord Fraser ofTullybelton
Lord Edmund-Davies
Lord Keith of Kinkel
Lord Roskill
Lord Bridge ofHarwich
LORD FRASER OF TULLYBELTON
My Lords,
I have had the advantage of reading in draft the speeches
of my noble and learned friends, Lord Roskill and Lord Bridge of
Harwich. I agree with them, and for the reasons given by them I
would allow the appeal and answer the certified question (as
revised) in the way that Lord Roskill proposes.
LORD EDMUND-DAVIES
My Lords,
At the outset I address myself briefly to the peripheral
question of whether on the established facts this appellant could
have been convicted of the full offence of handling stolen goods.
It is trite law that, as Darling J. said in Rex v. Sbarra (1918) 13
Cr.App.R. 118, 120: “The circumstances in which a defendant
receives goods may of themselves prove that the goods were
stolen, and . . . that the defendant knew [that fact].” So in Rex
v. Fuschillo [1940] 2 All E.R. 489, a conviction for feloniously
receiving a substantial quantity of sugar (a rationed commodity)
was upheld although, apart from the appellant’s own statements,
there was no evidence of the ownership of the sugar or of the
fact that it had been stolen.
But whether or not the circumstances of a particular case
are such that inferences of theft and of guilty knowledge can
properly be drawn are questions of mixed fact and law in the
former case and of fact in the latter. The conclusion arrived at
by the magistrates in the present instance is thus expressed in
their stated case:
“We were of opinion that the mere fact that [the appellant]
believed the goods to be stolen was inconclusive in the
absence of any evidence tending to show that the goods
were, in fact, worth more than the £110 which [she] paid
for them.”
– 1 –
It followed from this unassailable finding that the magistrates
could not thereafter proceed to convict the defendant of “handling
stolen goods” contrary to section 22 of the Theft Act 1968. But
the prosecution could not have foretold that such a finding would
be arrived at; for example, the appellant might have given
evidence and, both by what she said and by the manner in which
she said it, convinced the magistrates that she more than merely
suspected that the video recorder had been stolen and that, when
she physically received it, she not only believed it to be stolen but
also believed that it was in fact stolen. So some might think that
the prosecution should have presented its evidence on the full
offence and then awaited the outcome; but it is a matter of
personal judgment upon which I express no opinion, and particularly
as we know that on the attempted handling charge the defence
elected to call no evidence.
The sole question raised by this appeal is whether the
magistrates were right in dismissing the further charge of
attempting to “dishonestly handle a video recorder, knowing or
believing it to be stolen (value £500), contrary to section 1(1)
Criminal Attempts Act 1981.” The short and simple facts and the
wording of the section are fully dealt with in the speech prepared
by my noble and learned friend, Lord Roskill, and I shall not
repeat them. I regard these facts as basically identical with those
considered by your Lordships’ House in Reg. v. Smith (Roger)
[1975] AC 476, both cases involving consideration of the
ingredients of a charge of attempted handling. It is true that in
Reg. v. Smith (Roger) it was established that the goods had in
fact been stolen at one time, whereas in the present case there
was no direct evidence that the goods had ever been stolen and
the prosecution rested its case simply upon what the defendant had
told the police about her physical acts and her state of mind at
the material time. In Reg. v. Smith (Roger) after being stolen the
goods were taken into lawful custody and thereupon ceased to be
stolen: see the Act of 1968, section 24(3). In the present case the
magistrates were not satisfied that the recorder had ever been
stolen. But, despite that distinction (an immaterial one, as I hold),
were the facts of Reg. v. Smith (Roger) to recur today, in my
judgment they should lead to the same conclusion as do the facts
of the present case. In both cases the proper test is whether the
defendant believed the goods to be stolen when he performed “an
act which is more than merely preparatory to the commission of
the offence.”
In the present case the Divisional Court held that the
absence of evidence of theft was immaterial to the charge of
attempted handling. I think this was right, for either (a) the
recorder had been stolen, in which case the appellant was guilty of
an attempt to receive it, since the fact that she was also guilty
of the full offence of handling leaves unaffected her liability to
conviction for attempted handling (Webley v. Buxton [1977] Q.B.
481); or (b) the recorder had not been stolen, in which case the
appellant was, under the Act of 1981, guilty of attempted
handling.
My Lords, in my judgment the Divisional Court came to the
correct conclusion. If, on the contrary, the submission advanced
on behalf of the appellant is right, the legislature has substantially
– 2 –
missed its mark, for it was and is common knowledge that (to
take as an example merely the facts of the present case)
Parliament intended by the Act of 1981 that a person who
dishonestly handles goods, mistakenly believing that they are stolen
goods, should for the future be liable to conviction for attempted
handling.
Section 1(4) provides: “This section applies to any offence
which, if it were completed, would be triable in England and Wales
as an indictable offence …” I shall later indicate why, in my
judgment, the appellant clearly intended to handle stolen goods.
She also took steps which were “more than merely preparatory” to
the offence of handling, for in her belief that the goods were
stolen she bought the recorder and received it into her custody.
So she had the mens rea and, as far as she could and thought
(though mistakenly), she committed the actus reus of the full
offence of handling, though in reality a piece of the actus reus of
handling “stolen goods” was missing.
But, since the recorder was not in reality stolen, are the
facts nevertheless sufficient for the charge of attempted handling?
In developing the view that the proper answer is “No,” Professor
Hogan has observed [1984] Crim. L.R. 584, 589-590:
“[Mrs. Ryan] attempted to handle non-stolen goods believing
that they were stolen. That is not an offence known to the
law and cannot be an offence to which section 1 of the Act
applies. To convict Mrs. Ryan would be to contravene the
principle of legality; a person, however evil his or her
intentions may be, cannot be convicted unless he or she
does, or fails to do, something which constitutes the actus
reus of a defined crime. Mrs. Ryan got what she wanted
for what she wanted was the video recorder at a very low
price and in so doing did not handle stolen goods; if she is
to be properly convicted of an attempt the requirement for
proof that the goods were stolen still stands and cannot be
satisfied by proof that Mrs. Ryan thought they were stolen.”
I have set out this extensive quotation because Professor Hogan’s
article was cited and adopted by the appellant’s counsel. I desire
to make the following brief comments upon it:
-
-
-
In my judgment the quoted passage reveals an unsound
approach to the new law of attempts introduced by the Act
of 1981, which by section 6(1) abolished for all purposes the
common law relating to the offence of attempt. It is not
right to say that the appellant “attempted to handle non-
stolen goods.” Her own words disclosed that what she
attempted was to handle stolen goods, and to the best of
her belief she accomplished that very act, an act which
undoubtedly constitutes “an offence to which [section 1 of
the Act] applies” (section 1(1)). -
I naturally accept that, what is intended must be
something which, if accomplished, would have brought about
the actus reus of a defined crime, but at the same time I
bear in mind that, in ascertaining what was intended,
section 1(3) requires that the facts are to be taken as if
they had been as the actor believed them to be.
-
-
– 3 –
(3) Professor Hogan earlier said: “it can be accepted that
Mrs. Ryan had mens rea.” Then what mens rea did she
have? In my judgment, clearly the mens rea of one
intending to handle stolen goods, for from its attractively
low price she “supposed” that the recorder was stolen and
acting on that supposition she bought and received it. As
Professor Glanville Williams neatly puts it, “If the defendant
received a stolen article believing it to be clean, you would
not say that he intended to receive a stolen article. So
when he receives a clean article believing it to be stolen,
you should not say that he intended to receive a clean
article” (1985 N.L.J. 337).
My Lords, I hold that the appellant’s case fails to have full
and proper regard for the impact of subsection (2) and (3) of
section 1 of the Act. The section wins no prize for lucidity, but
its effect when considered in its entirety is that a person may
now be guilty of attempting an offence even though the facts are
such that commission of the full offence is impossible, provided
that, “if the facts of the case had been as he believed them to
be” (section l(3)(b)), he would be regarded as having made an
attempt to commit that offence. In dealing with any attempt
charge other than those expressly excluded by the Act, the Court
has now to take the facts as the defendant believed them to be.
If, on those supposed facts (as contrasted with supposed law), he
would be guilty of an attempt, the Act makes him guilty of it.
Taking the facts of the present case, before the Act a piece of
the actus reus would have been missing for both handling and
attempted handling, viz. the goods were not stolen; that is to
say, the decision in Reg. v. Smith (Roger) [1975] AC 476 would
have applied. Today, that piece is still missing and accordingly
there can again be no conviction for handling. Nevertheless, the
appellant is not in the position of one who, in the words of my
noble and learned friend, Lord Bridge of Harwich, “embarks on and
completes a course of conduct which is objectively innocent,” nor
is she to be convicted “solely on the ground that the person
mistakenly believes facts which, if true, would make that course
of conduct a complete crime.” The legality of her conduct now
fails to be judged by applying the Act, her belief being vitally
relevant not only to her intent but also to the quality in law of
her “objective” actions. Thus considered, her “more than merely
preparatory” conduct was, in my respectful judgment, certainly not
“innocent.” On the contrary, contaminated by and performed in
furtherance of her criminal objective, her conduct now constitutes
the actus reus of the new statutory offence of attempted handling.
My Lords, I believe that acceptance of the appellant’s case
would reduce the sonority of section 6(1) of the Act to a mere
tinkle. In my judgment the legislature has succeeded in doing
what in the main it set out to do, namely, to effect a radical
change in the law of attempts as it had been declared in Reg. v.
Smith (Roger). Professor Hogan, while agreeing that such was the
main purpose of the Act, concludes [1984] Crim. L.R. 584, 591
that there has been “a spectacular failure of legislative intent.”
Although the drafting of section 1 has been criticised, for the
reasons already stated I hold that there has been no such failure
and I would therefore dismiss the appeal.
– 4 –
But I must add a postscript. Throughout this speech I have
resisted the almost overwhelming temptation to illustrate some of
my observations by conjuring up hypothetical facts. I have
refrained for complementary yet antithetical reasons. On the one
hand, I do not consider it helpful to contemplate imaginary
situations which, if perchance they arose, it is unthinkable that
they would ever become the subject-matter of a prosecution. On
the other hand, as an appeal to your Lordships’ House from the
Court of Appeal (Criminal Division) decision in Reg. v. Shivpuri
[1985] 2 W.L.R. 29 has unfortunately yet to be heard, I have
refrained from considering situations basically indistinguishable
from that giving rise to the impending appeal lest I appear to be
prejudging its proper outcome. It is no fault of mine if, despite
such restraint, what I have perforce said has made obvious the
short answer I would unavoidably have given had it been deemed
necessary to deal in its entirety with the question here certified
by the Divisional Court.
LORD KEITH OF KINKEL
My Lords,
I have had the opportunity of reading in draft the speeches
to be delivered by my noble and learned friends, Lord Roskill and
Lord Bridge of Harwich. I agree that, for the reasons they give,
the appeal should be allowed.
LORD ROSKILL
My Lords,
This appeal necessitates your Lordships determining for the
first time the true construction of section 1 of the Criminal
Attempts Act 1981. That this section and the other relevant
sections of the Act of 1981 were enacted in consequence of the
decision of this House in Reg. v. Smith (Roger) [1975] AC 476 is
well known. That that decision aroused controversy and that
differing views have since been expressed by writers of distinction
as to the extent to which section 1 has altered the law as
declared in Reg. v. Smith (Roger) is also well known. It is,
therefore, important that the question of construction should be
approached by reference to well known principles, ignoring that
which is irrelevant however interesting, but remembering that
statutes should be given what has become known as a purposive
construction, that is to say that the courts should where possible
identify “the mischief” which existed before the passing of the
statute and then if more than one construction is possible, favour
that which will eliminate “the mischief” so identified.
The appeal arises from very simple facts out of which two
charges faced the appellant when she appeared before the justices
for Greater Manchester on 6 June 1983. The first was of
dishonestly handling a video recorder knowing or believing it to be
– 5 –
stolen, contrary to section 22 of the Theft Act 1968. The second
was of dishonestly attempting to handle that video recorder,
contrary to section 1(1) of the Act of 1981.
The facts are set out in the case which the justices stated
for the opinion of the High Court. In the late afternoon of
Sunday, 6 April 1983 a police officer visited the appellant at her
home at her request in order to investigate a burglary which was
alleged to have taken place there. In the course of conversation
the appellant admitted to the police officer that “she had bought
the video recorder for £110 from a person whom she declined to
name.” Later she said “I may as well be honest, it was a stolen
one I bought, I should not have ‘phoned you.” In answer to the
statement by the police officer that “You obviously knew it was
stolen didn’t you?” she replied “Yes, I knew, but it was damaged
at the back . . .” Subsequently she said in answer to the question
why she had bought it if she knew it to be stolen, she said “Well
everyone’s at it. I didn’t think I’d get discovered.” It is right to
mention that the police officer never saw the video recorder in
question and therefore could not give evidence either of its
condition or of its value.
After the appellant had pleaded not guilty to both charges,
the prosecution informed the justices that they did not wish to
proceed upon the first charge, that of dishonest handling. But the
prosecution invited the justices to convict the appellant on the
second charge on the basis that even though they could not prove
that the video recorder had been stolen, the appellant could, on
the facts already set out, by reason of section 1(1) of the Act of
1981 be convicted of dishonestly attempting to handle the video
recorder since she knew or believed it was stolen.
The justices found, as indeed was obvious from the evidence
already summarised, that:
“the [appellant] had received into her possession a video
cassette recorder and that at the time of the receipt into
her possession she was of her belief that it was stolen
goods.”
If the prosecution’s submission as to the effect of section
1(1) were correct, that last finding would of course justify her
conviction on the second charge. But the justices rejected the
submission and dismissed that charge. The prosecution appealed.
On 4 April 1984 the Divisional Court (Parker L.J. and Forbes J.)
[1985] 2 W.L.R. 23 allowed the appeal and sent the case back to
the justices with a direction to convict. But they certified that
the case gave rise to a point of law of general public importance.
As I shall point out in due course, the certificate was in a most
unusual form. The Divisional Court refused leave to appeal, but
subsequently leave was given by this House.
My Lords, certain matters may be mentioned at the outset,
if only to dispose of them. First I am, I understand in common
with all your Lordships, puzzled by the fact that the prosecution
withdrew the first charge. In my view there was ample evidence
from which a court could properly infer that the video recorder
had been stolen and it is clearly found that the appellant at the
time of its receipt also so believed. It may well be that had the
– 6 –
first charge not been withdrawn the justices would have felt
obliged to draw that very inference. Mr. Hytner Q.C. for the
appellant frankly accepted that there was at the lowest a prima
facie case established of dishonest handling. It follows from the
justices’ findings that if the prosecution had not, as I think
wrongly, withdrawn the first charge and the justices had thereafter
felt obliged to draw that inference, a conviction on the first
charge might well have ensued and the present problem would not
then have arisen. To that extent the appellant may count herself
fortunate. It is ironic that the present appeal arises, as did the
appeal in Reg. v. Smith (Roger) [1975] AC 476, as a result of a
concession of, to say the least, doubtful correctness: see the
speeches of my noble and learned friend Lord Hailsham of St.
Marylebone L.C., at p. 489, of Lord Reid, at p. 497, and of
Viscount Dilhorne, at p. 503.
Second, I have already referred to the unusual form of the
certificate. I will now set it out in full.
“Does a person commit an offence under section 1 of the
Criminal Attempts Act 1981 where if the facts were as that
person believed them to be the full offence would have been
committed by him but where on the true facts the offence
which that person set out to commit was in law impossible
e.g. because the goods handled and believed to be stolen
were not stolen or because the substance imported and
believed to be heroin was not heroin but harmless white
powder or because a girl with whom he had sexual
intercourse was not under the age of consent although he
believed her to be under such age?”
My Lords, with all respect to the Divisional Court, this
certificate was not, as it should have been, specifically limited to
the question of law arising on the particular facts of this case.
Having stated a question of law in general terms, the certificate
seeks answers on the basis of no less than three different sets of
facts, two of them necessarily hypothetical. Your Lordships were
told by counsel that the form of the certificate was not suggested
by either of them but was directed by the court. If this be so, I
can only say with the utmost respect that this form of certificate
is undesirable. The present certificate presupposes that the same
answers should be given to the question of law in each of the
three cases postulated. My Lords for the reasons I shall give I am
of the opinion that on the facts of this particular case the appeal
should succeed and that the conclusion reached by the Divisional
Court cannot, with respect, be supported. Though in the course of
giving my reasons for that view I shall say something of the
unlawful sexual intercourse example postulated, I must not be
taken as accepting that in the second case postulated, the
supposed import of heroin, no offence against section 1(1) would in
such a case have been committed. Your Lordships were told that
this last question came before the Court of Appeal Criminal
Division in Reg. v. Shivpuri [1985] 2 W.L.R. 29 some six months
after the present case was before the Divisional Court and that
leave to appeal to this House was then given by the former court.
It would therefore be wrong to engage in any discussion relevant
only to that case.
– 7 –
I return to the present appeal. In Reg. v. Smith (Roger)
[1975] AC 476 the goods in question had been stolen. But the
lorry carrying those goods was later intercepted and then passed
under the control of the police. Smith was one of a number of
men waiting to receive the lorry and its contents at a service
area on the Ml motorway and the police, having intercepted the
lorry and its contents, allowed it to proceed on its way with a
view to trapping the remainder of the gang involved. The
concession already referred to having been made, it was thought
that it was not possible successfully to charge Smith with
conspiracy to handle stolen goods since technically the goods in
question were no longer stolen goods by reason of section 24 of
the Act of 1968. But Smith was charged with and initially
convicted of attempting to handle those stolen goods. The
question then arose whether it was possible to attempt to commit
an offence if the offence itself was incapable of being committed
for reasons unknown to the accused. My noble and learned friend,
the Lord Chancellor, referred, at p. 493, to the six-fold
classification of attempted commission of offences enunciated by
Turner J. in Reg. v. Donnelly [1970] N.Z.L.R. 980. My noble and
learned friend said he found that six-fold classification more
satisfactory than the dual classification which had previously been
suggested in that case in the Court of Appeal Criminal Division.
For present purposes I need only refer to his citation from that
part of the judgment of Turner J. which relates to the fifth and
sixth examples of that classification:
“Fifth, he may find that what he is proposing to do is after
all impossible not because of insufficiency of means, but
because it is for some reason physically not possible,
whatever means be adopted. He who walks into a room
intending to steal, say a specific diamond ring, and finds
that the ring is no longer there, but has been removed by
the owner to the bank, is thus prevented from committing
the crime which he intended, and which, but for the
supervening physical impossibility imposed by events he
would have committed. Sixth, he may without interruption
efficiently do every act which he set out to do, but may be
saved from criminal liability by the fact that what he has
done, contrary to his own belief at the time, does not after
all amount to a crime in law.”
The reasoning of my noble and learned friend in relation to
the fifth class and his analysis of the decided cases happily
absolves me from the necessity of traversing the same ground once
more. At p. 495, he reached the conclusion: “in general I regard
the reasoning in Reg. v. M’Pherson (1857) Dears. Q.B 197 and Reg.
v. Collins (1864) 9 Cox C.C. 497 as sound and in general I would
consider that ‘attempts’ in Turner J.’s fifth class of case are not
indictable in English law …” Lord Reid, at p. 498,
emphatically rejected the argument that cases within the fifth
class constituted attempts. He said;
“It is said that if the accused does not know the true facts
but erroneously believes the facts to be such that his
conduct would be an offence if the facts had been as he
believes them to be, then he is guilty of an attempt to
commit the offence. In the case of a statutory offence
that appears to me to be clearly wrong. The only possible
– 8 –
attempt would be to do what Parliament has forbidden. But
Parliament has not forbidden that which the accused did,
i.e. handling goods which have ceased to be stolen goods.
The section defines both the actus reus and the mens rea
required to constitute the offence. Both must be proved.
Here the mens rea was proved but there was no actus reus
so the case is not within the scope of the section.”
I need not quote similar passages from the speech of Viscount
Dilhorne.
So far as the sixth class is concerned, the House
unanimously held that in this class of case also no offence was
committed. The House adopted, as correct the statement of law in
Rex, v. Percy Dalton (London) Ltd. (1949) 33 Cr.App.R. 102, 110:
“Steps on the way to the commission of what would be a
crime, if the acts were completed, may amount to attempts
to commit that crime to which unless interrupted they
would have led; but steps on the way to the doing of
something, which is thereafter done, and which is no crime
cannot be regarded as attempts to commit a crime.”
Lord Reid in a well known passage, at p. 500, dealt with the
matter thus:
“I would not, however, decide the matter entirely on logical
argument. The life-blood of the law is not logic but
common sense. So I would see where this theory takes us.
A man lies dead. His enemy comes along and thinks he is
asleep, so he stabs the corpse. The theory inevitably
requires us to hold that the enemy has attempted to murder
the dead man. The law may sometimes be an ass but it
cannot be so asinine as that.”
This then was the state of the law regarding cases falling
within the fifth and sixth classes before the enactment of the Act
of 1981. Plainly, before that Act was passed, the appellant could
not have been convicted of attempting dishonestly to handle stolen
goods because, had she attained her objective, she could not in law
have been guilty of dishonestly handling stolen goods, the goods by
concession not being stolen goods. Can she now be convicted of
that offence?
The answer depends on to what extent the Act of 1981 has
altered the law. For ease of reference I will set out the relevant
part of the long title and the relevant sections:
“An Act to amend the law of England and Wales as
to attempts to commit offences . . .
“1(1) If, with intent to commit an offence to which
this section applies, a person does an act which is more
than merely preparatory to the commission of the offence,
he is guilty of attempting to commit the offence. (2) A
person may be guilty of attempting to commit an offence to
which this section applies even though the facts are such
that the commission of the offence is impossible. (3) In any
case where – (a) apart from this subsection a person’s
– 9 –
intention would not be regarded as having amounted to an
intent to commit an offence; but (b) if the facts of the
case had been as he believed them to be, his intention
would be so regarded, then, for the purpose of subsection (1)
above, he shall be regarded as having had an intent to
commit that offence. (4) This section applies to any
offence which, if it were completed, would be triable in
England and Wales as an indictable offence, other than –
. . .”
The ensuing exceptions are irrelevant for present purposes.
“6(1) The offence of attempt at common law and any
offence at common law of procuring materials for crime are
hereby abolished for all purposes not relating to acts done
before the commencement of this Act.”
The principle which I have stated at the outset of this
speech that where more than one construction of a statute is
possible that preferred should be the construction which eliminates
the “mischief” at which the statute was directed must not be
carried to extremes. The facts of Reg. v. Smith (Roger) [1975]
A.C. 476 were most unusual. The problems to which the decision
of this House gave rise were many. It by no means follows that
Parliament in its efforts to solve some at least of those problems
intended by this legislation to solve them all, or to ensure that if
those unusual facts were to be repeated in the future, a defendant
in the same position as Smith should be convicted when before this
legislation he would have been entitled to acquittal. Loyalty to
the principle should not require the adoption of a construction
which leads to manifestly absurd results unless, of course, the
draftsman’s language compels that conclusion. I have already
quoted Lord Reid’s observations about the possible asininity of the
law in this field. For my part I decline to construe a statute
designed to amend “the law … as to attempts” and thus to
reform it so as to make it sensible and simple in its future
application as having that result. It must, however, be said that
the language used in the statute is such as to make the
attainment of common sense and the avoidance of asininity at one
and the same time almost impossible of achievement.
My Lords, I begin my approach by recalling first that the
statute is dealing only with inchoate offences and secondly the
warning uttered by my noble and learned friend Lord Hailsham of
St. Marylebone L.C. in his speech in Reg. v. Smith (Roger) at p.
493, against over-analysis in this field of the criminal law. It is
important when construing the statute to look at its language and
not only at the antecedent classification to which I have already
referred. The question to be asked is not whether the statute
remedies the problem in class 5 cases, or in class 6 cases, or in
neither or in both. The question to be asked is whether on a fair
construction of the language used an accused person charged with
an attempt is in the particular circumstances envisaged by the
statute liable to conviction where before he would have been
entitled to acquittal.
Mr. Hytner Q.C. for the appellant after drawing your
Lordships’ attention to the relevant part of the long title invited
your Lordships first to consider the language of subsections (1) and
– 10 –
(4). Writing the relevant words of subsection (4) into subsection
(1) the latter then reads:
“If with intent to commit an offence which if it were
completed would be triable in England and Wales as an
indictable offence, a person does an act which is more than
merely preparatory to the commission of the offence, he is
guilty of attempting to commit the offence.”
Mr. Hytner then argued that dishonest handling of goods
which are not stolen is not an indictable offence triable in England
and Wales. This video recorder was not by concession stolen.
Therefore on the facts found the appellant was not guilty of
attempting to handle stolen goods, whatever her belief. The
statute he said does not create an offence where only mens rea
exists and there is no actus reus and it is still no offence to
attempt to do that which if done is not in law an offence.
This submission depends for its success solely upon the
interpretation of section 1(1) and (4). If the submission be correct
the statute would not have achieved its aim, namely to reverse
any part of the decision in Reg. v. Smith (Roger) [1975] AC 476.
The submission ignores subsections (2) and (3).
Let me, therefore, turn to those two subsections. I will
consider them in turn. Subsection (2) is seemingly aimed at cases
such as that of the pickpocket who puts his hand into an empty
pocket. In fact – I emphasise those words – he never could have
achieved his ambition because the pocket was empty. The
commission of the full offence was never possible not because of
any lack of intent (mens rea) or indeed lack of relevant physical
action (actus reus) on the part of the pickpocket. But because he
was attempting to do that which was factually impossible it was
said that he must be acquitted. That happily is now a matter of
past controversy. Subsection (2) has at least removed the viability
of what became known as the pickpocket’s defence. It is against
that background that I turn to consider subsection (3).
I confess I have found great difficulty in determining the
precise ambit of this subsection. The problems start with
paragraph (a): “where – (a) apart from this subsection a person’s
intention would not be regarded as having amounted to an intent
to commit an offence; . . .” Smith always intended to commit an
offence and took many steps preparatory to achieving his aim. It
was not insufficiency of intention which led to his acquittal: his
acquittal was because that at which he aimed would not, by the
time he achieved his aim, have been in law an offence. But
paragraph (b) goes on to provide that “if the facts of the case had
been as he believed them to be, his intention would be so
regarded.” The subsection then provides that if the two conditions
specified in (a) and (b) are fulfilled “then, for the purposes of
subsection (1) above, he shall be regarded as having had an intent
to commit that offence.”
My Lords, in agreement with my noble and learned friend,
Lord Bridge of Harwich, whose speech I have had the advantage of
reading in draft and with which I entirely agree, I think that
subsections (2) and (3) are complementary and must be considered
together. In his speech my noble and learned friend instances the
-11 –
case of a thief who steals a suitcase which is in fact full of strips
of newspaper but which he believes to contain £10,000 in cash.
On the law as laid down in Reg. v. Smith (Roger) [1975] AC 476,
and indeed under the statute if subsections (1) and (4) stood alone,
the thief is only guilty of stealing the strips of newspaper. But
subsection (3) enables him to be charged with and convicted of
attempting to steal £10,000 in cash. Like my noble and learned
friend, I do not propose to categorise the many examples discussed
in Reg. v. Smith (Roger) and consider which would now fall within
subsections (2) or (3) or possibly within both. But I would add a
further example to that given by my noble and learned friend. I
take the case of a defendant intending to kill another by stabbing
him or by shooting him in bed only to find after the knife has
been plunged or the revolver fired that the assumed and intended
victim was a pillow. Such a defendant I am glad to think could
now be successfully charged with and convicted of attempted
murder. Before, in my view, a judge, however reluctantly, would
have been compelled to direct his acquittal on such a charge.
There is no doubt as to the guilty mind and the guilty act of that
defendant. But, in truth, his intention at the time was always
incapable of fulfilment. Since the enactment of subsection (3), the
necessary intention is supplied by his guilty but mistaken state of
mind.
My Lords, it has been strenuously and ably argued for the
respondent that these provisions involve that a defendant is liable
to conviction for an attempt even where his actions are innocent
but he erroneously believes facts which, if true, would make those
actions criminal, and further, that he is liable to such conviction
whether or not in the event his intended course of action is
completed.
The question is whether the language used by the draftsman
in subsection (3) compels this result. After long consideration of
the difficulties to which the drafting gives rise, I have come to
the conclusion, in agreement with my noble and learned friend,
Lord Bridge of Harwich, that it does not. I respectfully agree
with his view that if the action is innocent and the defendant does
everything he intends to do, subsection (3) does not compel the
conclusion that erroneous belief in the existence of facts which, if
true, would have made his completed act a crime, makes him
guilty of an attempt to commit that crime. I also think that
likewise a defendant who is possessed of a like erroneous belief
and who after doing innocent acts which are more than merely
preparatory to fulfilling his intention, for some reason subsequently
fails to achieve that which he intends is not liable to be convicted
of an attempt to commit a crime.
If the contrary proposition be correct, some remarkable
results follow. Let me take only one example. A young
gentleman is determined upon sexual intercourse with a young lady
whom he erroneously believes to be under 16. She is in fact 18.
He succeeds in his ambition. Before subsection (3) was enacted he
was clearly not guilty of any offence. Since the enactment of
subsection (3), his completed act is still itself not a completed
offence. I find it impossible to believe that it was intended by
subsection (3) that he should be liable to be found guilty of
attempting to have unlawful sexual intercourse with a girl under
16 merely because of his erroneous belief. I find it equally
– 12 –
impossible to believe that in those circumstances Parliament
intended that he should be liable to conviction for an attempt to
commit that offence in a case where, for some reason, he failed
at the last moment to achieve his ambition.
I do not stop to speculate what Lord Reid might have
thought or, indeed, have said about legislation which led to such a
result.
In my view, much clearer and one might say much more
drastic language would be required to achieve that last result.
Without presuming to redraft the subsection, I would at least have
expected to have found some such provision as:
“If a person does an act which, if the facts were as that
person believed them to be, would amount to an offence to
which this section applies, he shall be guilty of attempting
to commit that offence.”
The language which the draftsman has used seems to me to fall a
long way short of anything so drastic and far reaching.
For the reasons I have given I summarise my conclusions
thus:
-
-
-
Sections 1(1) and (4) are designed to replace as a
matter of statute law the former relevant common law. But they
would not of themselves eliminate any of the problems created by
Reg. v. Smith (Roger) [1975] AC 476. Indeed they would
preserve them. But it was plainly the intention of the statute to
change some at least of the law as declared in the speeches in
that case. -
Subsection (2) certainly covers the pickpocket-empty
pocket case. It may cover more but I do not find it necessary to
consider the precise scope of this subsection. -
Subsection (3) covers the case of a defendant
possessed of a specific criminal intent which he erroneously
believes to be possible of achievement but which in fact is not
possible of achievement. -
Subsection (3) does not, however, make a defendant
liable to conviction for an attempt to commit an offence when,
whatever his belief, on the true facts he could never have
committed an offence had he gone beyond his attempt so as to
achieve fruition.
-
-
I would, therefore, allow the appeal and set aside the order
of the Divisional Court. It follows that the justices reached a
correct conclusion.
For the reasons already given, I do not think the certificate
is susceptible of an answer in the terms in which it is expressed.
I would, therefore, revise it and having done so answer it as
follows:
“Where a person dishonestly handles goods in the belief that
they are stolen goods but those goods are not in fact stolen,
– 13 –
that person is not liable to be convicted of attempting
dishonestly to handle stolen goods contrary to section 1 of
the Criminal Attempts Act 1981.”
My Lords, this is a case of general importance and I suggest
that the costs of both parties should be paid out of central funds.
LORD BRIDGE OF HARWICH
My Lords,
There is no more fertile field of legal controversy in the
criminal law than that concerned with attempting the impossible.
There was a wealth of learned literature on the subject both
before and after the decision of your Lordships’ House in Reg. v.
Smith (Roger) [1975] AC 476 (“Smith’s case”). The further
decision of the House in Director of Public Prosecutions v. Nock
[1978] A.C. 979 and the Law Commission’s discussion and
recommendations on the subject, accompanied by a draft Bill,
Criminal Law: Attempt, and Impossibility in Relation to Attempt,
Conspiracy and Incitement (1980) (Law Commission No. 102) kept
the debate well fuelled. The Criminal Attempts Act 1981, which
your Lordships have now to construe for the first time, gave a
fresh impetus to the discussion in legal journals and text books. If
one thing emerges clearly from the literature on the subject, it is
that there is no consensus as to what the law ought to be, let
alone as to what the law is.
The facts giving rise to this appeal are recounted in the
speech of my noble and learned friend Lord Roskill and I need not
repeat them. I say nothing as to the wisdom of the prosecution in
deciding to offer no evidence against the appellant on the
substantive charge of handling stolen goods or as to what might
have been the outcome if they had proceeded on that charge. As
matters stand, it is fundamental to the appeal that we must
assume that the video recorder which, according to her own
statement, the appellant had bought for £110 was not and never
had been stolen. Objectively considered, therefore, her purchase
of the recorder was a perfectly proper commercial transaction.
What the respondent must establish to sustain the decision of the
Divisional Court is that, on the true construction of section 1 of
the Act of 1981, her mistaken belief that the recorder was stolen
was, by itself, sufficient to convert the transaction into an
attempt to commit the offence of handling stolen goods.
The Act of 1981 was clearly intended to change much of
the law as declared in Smith’s case, but the speeches in that case
covered a wide range and, for my part, I see no ground for
assuming that the legislation was necessarily designed to reverse
the decision in Smith’s case on its own facts. The acquittal of
Roger Smith may have been part of the mischief identified by the
Law Commission as calling for a remedy. But the Act of 1981 is
significantly differently drafted from the Bill appended to the
report, Law Commission No. 102, Appendix A, p. 85. As my noble
and learned friend Lord Roskill points out, three of their Lordships
in Smith’s case doubted the correctness of the Crown’s concession,
– 14 –
which they were nevertheless obliged to accept, that at the time
when the goods in question were handled by Roger Smith they had
been returned to lawful custody and had therefore ceased to be
stolen goods. Apart, however, from the attempt charge, my noble
and learned friend Lord Hailsham of St. Marylebone L.C. thought
[1975] A.C. 486, 489 that if the second count of conspiracy against
Roger Smith had been left to the jury it “could hardly have
failed.” I agree. If the unusual facts of Smith’s case were to be
repeated it seems to me that justice could be done by prosecuting
for conspiracy, and that there would be no need to charge
attempted handling in reliance on the Act of 1981.
I accordingly approach the question arising in the present
appeal as one of pure construction with no preconceived view of
the legislative purpose intended. The relevant sections of the Act
are set out in the speech of my noble and learned friend Lord
Roskill and again I need not repeat them. I join with him in
deprecating the form of the certified question, but I shall find it
helpful in explaining the view that I have formed to refer to
hypothetical illustrative cases, without, I hope, touching on any
that might come before your Lordships for decision.
The question may be stated in abstract terms as follows.
Does section 1 of the Act of 1981 create a new offence of
attempt where a person embarks on and completes a course of
conduct which is objectively innocent, solely on the ground that
the person mistakenly believes facts which, if true, would make
that course of conduct a complete crime? If the question must be
answered affirmatively it requires convictions in a number of
surprising cases: the classic case, put by Bramwell B. in Reg. v.
Collins (1864) 9 Cox C.C. 497, of the man who takes away his
own umbrella from a stand, believing it not to be his own and
with intent to steal it; the case of the man who has consensual
intercourse with a girl over 16 believing her to be under that age;
the case of the art dealer who sells a picture which he represents
to be and which is in fact a genuine Picasso, but which the dealer
mistakenly believes to be a fake.
The common feature of all these cases, including that under
appeal, is that the mind alone is guilty, the act is innocent. I
should find it surprising that Parliament, if intending to make this
purely subjective guilt criminally punishable, should have done so
by anything less than the clearest express language, and, in
particular, should have done so in a section aimed specifically at
inchoate offences.
I agree with my noble and learned friend Lord Roskill that
section 1(1) and (4) of the Act of 1981 provide a statutory
substitute for the common law offence of attempt abolished by
section 6. It seems to me possible to find ample substance and
content in section 1(2) and (3), reversing aspects of the law of
attempt which emerge from Smith’s case, without straining them
to make the present appellant guilty of any offence. It is
sufficient to say of subsection (2) that it is plainly intended to
reverse the law, originally declared in Reg. v. Collins, 9 Cox C.C.
497, mistakenly thought to have been overruled by Reg. v. Brown
(1889) 24 Q.B.D. 357, but reaffirmed in Smith’s case, that the
pickpocket who puts his hand in an empty pocket commits no
offence. Putting the hand in the. pocket is the guilty act, the
– 15 –
intent to steal is the guilty mind, the offence is appropriately
dealt with as an attempt, and the impossibility of committing the
full offence for want of anything in the pocket to steal is
declared by the subsection to be no obstacle to conviction. The
precise scope of subsection (3) is more difficult to delineate and I
will not be so rash as to attempt to identify to which of the
numerous hypothetical cases discussed in Smith’s case it would
apply; but I have no difficulty in giving an example of my own to
which it certainly would. A wages clerk collects £10,000 in cash
from the bank every Friday in a suitcase. An informer tells the
police that a thief plans on a particular Friday to snatch the case
and steal the money. The police set a trap, but, in case the thief
should escape, arrange that the bank will fill the suitcase with
torn strips of newspaper. The thief snatches the suitcase intending
to throw it away and take the money which he believes it
contains. At common law his only offence is stealing the torn
pieces of newspaper. The effect of section 1(1) and (3) of the
Act of 1981 is that he is guilty of attempting to steal £10,000.
Here again there is a guilty act “more than merely preparatory to
the commission of the offence” under subsection (1). Apart from
subsection (3) his intention would not be regarded as an intention
to steal £10,000. By subsection (3) his erroneous belief requires
that his intention should be so regarded. It follows that the
section enables him to be convicted of attempting to steal
£10,000.
It seems to me that subsections (2) and (3) are in a sense
complementary to each other. Subsection (2) covers the case of a
person acting in a criminal way with a general intent to commit a
crime in circumstances where no crime is possible. Subsection (3)
covers the case of a person acting in a criminal way with a
specific intent to commit a particular crime which he erroneously
believes to be, but which is not in fact, possible. Given the
criminal action, the appropriate subsection allows the actor’s guilty
intention to be supplied by his subjective but mistaken state of
mind, notwithstanding that on the true facts that intention is
incapable of fulfilment. But if the action is throughout innocent
and the actor has done everything he intended to do, I can find
nothing in either subsection which requires me to hold that his
erroneous belief in facts which, if true, would have made the
action a crime makes him a guilty of an attempt to commit that
crime.
I add by way of postscript that the construction I put on
section 1 of the Act of 1981 would not, in my view, lead to a
conviction of Roger Smith of attempting to handle stolen goods on
the basis of the facts as the House was obliged to accept them in
Smith’s case. At the time when Roger Smith took control of the
erstwhile stolen goods and proceeded to assist in their removal and
disposal, the goods, on the basis of the concession reluctantly
accepted by the House, had lost their character as stolen goods.
Roger Smith’s earlier intentions, at the time when the goods were
stolen, were irrelevant. He had not at that time done any act
more than merely preparatory to the commission of an offence.
He had conspired, but not attempted, to handle stolen goods. By
the time he handled the goods, since they were no longer to be
regarded as stolen, however guilty his mind, his act was as
innocent as that of the appellant in the present case. However,
as I have explained earlier, I find it unnecessary to construe the
– 16 –
Act of 1981 as overriding the decision on the facts in Smith’s
case.
For all these reasons and for the reasons given by my noble
and learned friend, Lord Roskill, I would allow the appeal and
answer the certified question, as modified, in the terms he
proposes.
– 17 –
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