Cases on Preliminary Crimes | Case Summaries

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Cases on Preliminary Crimes

Race Relations Board v Applin [1973]

The defendant members of the ‘National Front’ had conducted a campaign

against a Mr and Mrs W (a white couple) fostering black children. They had

written threatening letters, distributed circulars and held public meetings in

an attempt to persuade the married couple to stop fostering black children. The

RRB sought a declaration that the defendants’ acts were unlawful under s12 of

the Race Relations Act 1968, which makes it unlawful to discriminate in the

public provision of services, and an injunction restraining them from inciting a

person to do an act which was unlawful under the 1968 Act.

It was held, by the Court of Appeal (Civil Division) that the defendants had

‘incited’ Mr and Mrs W, within s12 of the 1968 Act, to discriminate unlawfully.

The word ‘incite’ in s12 was not limited to advice, encouragement or persuasion

of another to do an act but included threatening or bringing pressure to bear on

a person. Accordingly the defendants, bringing pressure to bear on Mr and Mrs W

to take white children only, had ‘incited’ them to do so. It followed that,

since it would have been unlawful discrimination under the Act for Mr and Mrs W

to take white children only, it was, by virtue of s12, unlawful for the

defendants to incite them to do so.

Invicta Plastics Ltd v Clare [1976]

The defendant had advertised a device with a photograph showing a view of a

speed restriction sign, implying that it could be used to detect police radar

traps. It was not an offence to own one of these devices, but it was an offence

to operate one without a licence. In confirming the company’s conviction for

inciting readers of the adverts to commit breaches of the Wireless Telegraphy

Act 1949, the Divisional Court held that the mens rea involved not only an

intention to incite, but also an intention that the incitee should act upon the


R v Curr [1968] 2 QB 944

The defendant ran a loan business whereby he would lend money to women with

children in return for their handing over their signed family allowance books.

He would then use other women to cash the family allowance vouchers. He was

convicted of inciting the commission of offences under s9(b) of the Family

Allowance Act 1945, which made it an offence for any person to receive any sum

by way of family allowance knowing it was not properly payable.

He appealed successfully to the Court of Appeal, where it was held that the

trial judge had erred in not directing the jury to consider whether these women,

who were being incited to use the signed allowance books to collect money on

behalf of the defendant, had actually known that what they were being asked to

do was unlawful. It would have been more appropriate to have charged the

defendant as the principal offender relying on the doctrine of innocent agency.

R v Fitzmaurice [1983]

The defendant’s father had asked the defendant to recruit people to rob a

woman on her way to the bank by snatching wages from her. The defendant

approached B and encouraged him to take part in the proposed robbery. Unknown to

the defendant, no crime was to be committed at all; it was a plan of his

father’s to enable him to collect reward money from the police for providing

false information about a false robbery. The defendant was convicted of inciting

B to commit robbery by robbing a woman near the bank. He appealed against

conviction on the ground that what he had incited had in fact been impossible to

carry out.

The Court of Appeal dismissed the appeal. It was held that (1) At common law

incitement to commit an offence could not be committed where it was impossible

to commit the offence alleged to have been incited. Accordingly, it was

necessary to analyse the evidence to decide the precise offence which the

defendant was alleged to have incited and whether it was possible to commit that

offence. (2) Since at the time the defendant encouraged B to carry out the

proposed robbery the defendant believed that there was to be a wages snatch from

a woman on her way to the bank, and since it would have been possible for B to

carry out such a robbery, the defendant had incited B to carry out an offence

which it would have been possible rather than impossible for B to commit. It

followed that the defendant had been rightly convicted.


R v Chrastny [1991]

The defendant had been convicted of conspiracy to supply a Class A drug, and

sought to challenge her conviction on the ground that the trial judge had erred

in law in directing the jury that, although the defendant had only agreed with

her husband that the offence should be committed, s2(2)(a) of the Criminal Law

Act 1977 provided no protection where she had nevertheless known of the

existence of the other conspirators. In dismissing the appeal, Glidewell LJ

pointed out that the provision does not enable a wife to escape liability simply

by taking care only to agree with her spouse, even though she knows of the

existence of other parties to the conspiracy. Only where she remained genuinely

ignorant of other parties to such a conspiracy would s2(2)(a) protect her.

R v Anderson [1986]

The defendant agreed for a fee to supply diamond wire to cut through prison

bars in order to enable another to escape from prison. He claimed that he only

intended to supply the wire and then go abroad. He believed the plan could never

succeed. He appealed against his conviction for conspiring with others to effect

the release of one of them from prison, claiming that as he did not intend or

expect the plan to be carried out, he lacked the necessary mens rea for the

offence of conspiracy.

The House of Lords dismissed the appeal. Lord Bridge stated that beyond the

mere fact of agreement, the necessary mens rea of the crime is established if it

is shown that the accused, when he entered into the agreement, intended to play

some part in the agreed course of conduct in furtherance of the criminal purpose

which the agreed course of conduct was intended to achieve. On the facts of the

case, the defendant clearly intended, by providing diamond wire to be smuggled

into the prison, to play a part in the agreed course of conduct in furtherance

of the criminal objective.

Yip Chiu-Cheung v R [1994]

The defendant had entered into an agreement with an undercover police

officer, whereby the officer would fly from Australia to Hong Kong, collect a

consignment of heroin from the defendant, and return with it to Australia. In

due course, however, the defendant was charged with, and convicted of,

conspiring to traffic in dangerous drugs. He appealed on the ground that there

could be no conspiracy as his co-conspirator had been acting to promote law

enforcement, and that the officer’s purpose had been to expose drug-trafficking.

The appeal was dismissed by the Privy Council. Even though the officer would

have been acting courageously and from the best of motives, it had nevertheless

been his intention, at the time the agreement was made, to take prohibited drugs

from Hong Kong to Australia. If the agreement had been executed he would have

committed a serious criminal offence. It followed that there had been a

conspiracy and the defendant had been properly convicted.

Scott v MPC [1975]

The defendant agreed with the employees of cinema owners that, in return for

payment, they would remove films without the consent of their employers or of

the owners of the copyright, in order that the defendant could make copies

infringing the copyright, and distribute them for profit. The defendant argued

that the conspiracy charged did not involve any deceit of the companies and

persons who owned the copyright. The House of Lords held that the defendant was

guilty of a conspiracy to defraud and that it did not necessarily involve


Wai Yu-Tsang v R [1992]

The defendant was convicted of conspiring to defraud a bank, of which he was

the chief accountant. He had agreed with others not to enter certain dishonoured

cheques on the records of the bank in order to save the bank’s reputation. The

trial judge’s direction to the jury, with which the Privy Council agreed, was to

the effect that for conspiracy to defraud, no desire to cause loss on the part

of the defendant need be shown, it being sufficient that he had imperiled the

economic or proprietary interests of another party.

Shaw v DPP [1962]

The defendant published a “Ladies Directory” which advertised the

names and addresses of prostitutes with, in some cases, photos and in others,

details of sexual perversions which they were willing to practise. The House of

Lords held that an offence of conspiracy to corrupt public morals existed at

common law. The conspiracy to corrupt public morals consisted of an agreement to

corrupt public morals by means of the magazine; and the defendants had been

rightly convicted.

Knuller v DPP [1973]

The defendant and others had published adverts in a magazine aimed at

homosexuals, encouraging them to have sexual relations with each other. The

House of Lords held that an agreement to publish adverts to facilitate the

commission of homosexual acts between adult males in private was a conspiracy to

corrupt public morals, although such conduct is no longer a crime. Lord Reid

believed that no licence was given to others to encourage the practice.

A majority of the House held that there is also a common law offence of

outraging public decency. Lord Simon said: “…’outrage’, like ‘corrupt’

is a very strong word. ‘Outraging public decency’ goes considerably beyond

offending the susceptibilities of, or even shocking, reasonable people.”

R v Gibson and another [1991]

The defendants exhibited at an exhibition in a commercial art gallery, a

model’s head to which were attached earrings made out of freeze-dried human

foetuses. The exhibit was entitled ‘Human Earrings’. The gallery was open to,

and was visited by, members of the public. The defendants were charged with, and

convicted of, outraging public decency contrary to common law.


R v Gullefer (1990)

The defendant, seeing that the dog he had backed in a greyhound race was

losing, jumped onto the track and attempted to distract the dogs by waving his

arms. He hoped that the stewards would declare “no race” whereupon

punters would be entitled to have their money back and he would recover his £18

stake. He was convicted of attempted theft and appealed on the ground that his

acts were not sufficiently proximate to the completed offence of theft to be

capable of comprising an attempt to commit theft.

His conviction was quashed. Lord Lane CJ questioned, Might it properly be

said that when he jumped on to the track he was trying to steal £18 from the

bookmaker? He had not gone beyond mere preparation. It remained for him to go to

the bookmaker and demand his money.

R v Jones (1990)

The defendant had bought some guns, shortened the barrel of one of them, put

on a disguise and had gone to the place where his intended victim, F, dropped

his daughter off for school. As the girl left the car, the defendant jumped into

the rear seat and asked F to drive on. They drove to a certain point where the

defendant took a loaded sawn-off shotgun from a bag and pointed it at F and

said: “You are not going to like this.” F grabbed the gun and managed

to throw it out of the window and escaped. The defendant was convicted of

attempted murder and appealed.

In dismissing his appeal Taylor LJ felt that there was evidence from which a

reasonable jury, properly directed, could conclude that the defendant had done

acts which were more than merely preparatory. His Lordship pointed out that the

defendant’s actions in obtaining, shortening and loading the gun, and in putting

on his disguise and going to the school could only be regarded as preparatory

acts. But once he had got into the car, taken out the loaded gun and pointed it

at the victim with the intention of killing him, there was sufficient evidence

for the consideration of the jury on the charge of attempted murder.

R v Campbell (1991)

The defendant planned to rob a post-office. He drove a motorbike to near the

office, parked it and approached, wearing a crash helmet. He was carrying an

imitation gun and a threatening note which he planned to pass to the cashier in

the post office. He was walking down the street and when one yard from the post

office door, police, who had been tipped off, grabbed the defendant and arrested

him. He was convicted of attempted robbery and appealed.

In allowing the appeal, Watkins LJ stated that in order to effect the robbery

it would have been quite impossible unless he entered the post office, gone to

the counter and made some kind of hostile act directed at whoever was behind the

counter and in a position to hand him money. A number of acts remained undone

and the series of acts which he had already performed – namely, making his way

from his home, dismounting from the cycle and walking towards the post office

door – were clearly acts which were indicative of mere preparation. If a person,

in circumstances such as this, has not even gained the place where he could be

in a position to carry out the offence, it is extremely unlikely that it could

ever be said that he had performed an act which could be properly said to be an

attempt. (Note: The appropriate charge would have been going equipped with

intent to steal.)

A-G’s Reference (No 1 of 1992) (1993)

The defendant was charged with attempted rape. He had pushed the victim to

the ground, removed some of her undergarments, and lain on top of her. When the

police arrived she was partially clothed, and the defendant had his trousers

down. During the course of the trial the judge directed the jury to acquit, on

the basis that there was insufficient evidence of the defendant having attempted

to have sexual intercourse. The defendant was acquitted. The Attorney-General

referred the issue to the Court of Appeal.

Lord Taylor CJ stated: “It is not, in our judgment, necessary, in order

to raise a prima facie case of attempted rape, to prove that the defendant with

the requisite intent had necessarily gone as far as to attempt physical

penetration of the vagina. It is sufficient if there is evidence from which the

intent can be inferred and there are proved acts which a jury could properly

regard as more than merely preparatory to the commission of the offence. For

example, and merely as an example, in the present case the evidence of the young

woman’s distress, of the state of her clothing, and the position in which she

was seen, together with the respondent’s acts of dragging her up the steps,

lowering his trousers and interfering with her private parts, and his answers to

the police, left it open to a jury to conclude that the respondent had the

necessary intent and had done acts which were more than merely preparatory. In

short that he had embarked on committing the offence itself.”

R v Geddes [1996]

The defendant had been seen by a teacher in the boys’ toilets of a school. He

had no connection with the school and no right to be there. He had a rucksack

with him. A police officer saw him and shouted at him, but he left. In a cubicle

in the lavatory block there was a cider can which had belonged to the defendant.

His rucksack was found in some bushes, containing a large kitchen knife, rope

and a roll of masking tape. The defendant was arrested and identified by the

teacher and some pupils. He was charged with attempted false imprisonment. The

prosecution alleged that the presence of the cider can showed that the defendant

had been inside a toilet cubicle, and that the contents of the rucksack could

have been used to catch and restrain a boy entering the lavatory. The defendant

was convicted.

The Court of Appeal allowed the defendant’s appeal. It held that the line of

demarcation between acts which were merely preparatory and acts which might

amount to an attempt was not always clear or easy to recognise. There was no

rule of thumb test, and there must always be an exercise of judgment based on

the particular facts of the case. It was an accurate paraphrase of the statutory

test to ask whether the available evidence could show that a defendant had done

an act showed that he had actually tried to commit the offence in question, or

whether he had only got ready or put himself in a position or equipped himself

to do so.

In the present case there was not much room for doubt about the defendant’s

intention, and the evidence showed that he had made preparations, had equipped

himself, had got ready, had put himself in a position to commit the offence

charged, but he had never had any or communication with any pupil at the

school. On the facts of the case the evidence was not sufficient in law to

support a finding that the defendant had done an act which was more than merely

preparatory to wrongfully imprisoning a person unknown.

R v Tosti and White (1997)

The defendants had been seen by the owners of a farm, just before midnight,

walking to the door of a barn, and examining the padlock. They saw that they

were being watched, took fright and ran off. A car was parked in a nearby

lay-by, and between the car and the barn, hidden in a hedge, was some oxygen

cutting equipment. There was sufficient evidence to connect T with the

equipment. The defendants were convicted of attempted burglary. The defendants

appealed against conviction on the ground that there was no evidence upon which

the jury could have found that an attempted burglary had been committed.

It was held by the Court of Appeal, dismissing the appeal, that the short

question was whether it could be said that the defendants, in providing

themselves with oxygen cutting equipment, driving to the scene, concealing the

equipment in a hedge, approaching the door of the barn and bending down to

examine how best to go about the job of breaking into the barn, had committed

acts which were more than merely preparatory, and which amounted to acts done in

the commission of the offence. The question was essentially one of degree. It

had been said in Geddes (1996) that the test was to ask whether the evidence if

accepted could show that the defendant had done an act which showed that he had

actually tried to commit the offence, or whether he had only got ready or put

himself in a position or equipped himself to do so. Applying that guidance to

the facts of the present case, the facts proved in evidence were sufficient for

the judge to leave to the jury.

R v Toothill [1998]

The victim lived in a house with a garden, which was situated in an isolated

area. At about 11pm she saw the defendant standing a few feet from the rear of

her house, apparently masturbating. She telephoned the police. He was arrested

in the garden, where a knife and a glove were found. A condom was found in his

pocket. The defendant admitted that he had knocked at the door to ask for

directions as he could not find where he had parked his car. He was charged with

attempted burglary with intent to rape. The defendant was convicted and appealed

on the ground that it was incumbent on the judge to look for evidence not merely

of an attempt to burgle but also an attempt to commit rape, namely that he would

have knowledge that there was a person in the house, to lay the foundation for a

finding that that was what the defendant had in his mind.

The Court of Appeal dismissed the appeal. In the present case, the actus reus

of the offence was the act of entering the property as a trespasser. What

converted it into burglary was the presence of the trespasser with the intention

to commit one or other of the offences set out in s9(2) of the Theft Act 1968.

The attempt was to do the act, not to have the intention. The crucial step that

the defendant took, which established that he had gone beyond the preparatory to

the executory stage of his plan, was that he knocked at the proposed victim’s


R v Nash [1999]

Two letters addressed to “Paper boy” were left in the street. They

were opened by a paper boy and a paper girl who found that they contained an

invitation to the recipients to engage in acts of indecency with the author. A

third letter purported to offer the recipient work with a security company and

requested a specimen of urine. All three letters were taken to the police. At

the instigation of the police the third paper boy went to meet the writer of the

letter in a local park. There he saw the defendant, who asked him if he was

looking for JJ, the signatory of the third letter. The defendant was arrested. A

search of his home revealed a typewriter bearing the same typeface as that used

in the letters and a letter written in similar terms to the other three found.

There was expert evidence that all four letters had almost certainly been

written on that typewriter. The defendant’s defence was that he had been set up.

He was convicted of three counts of attempting to procure an act of gross

indecency. One of the grounds of appeal was that the judge erred in ruling that

there was a case to answer on Count 3 since the fact of leaving out the third

letter was no more than a mere preparatory act and was insufficient to

constitute an attempt in law.

The Court of Appeal allowed the appeal in respect of Count 3. Following the

decision in Geddes (1996), which helpfully illustrated where and how the line

was drawn between acts which were merely preparatory and acts which could amount

to an attempt, the terms of letter three, which did not contain an overtly

sexual invitation, as compared with the terms of letters one and two, were not

such as to amount to an unequivocal invitation and were not sufficiently

approximate to the act of procurement to amount to an attempt.

R v Khan and others [1990]

After a discotheque a 16-year-old girl accompanied five youths in a car to a

house where they were joined by other youths. Three youths raped her. The four

defendants tried to do so but failed. The defendants were charged with attempted

rape and appealed. It was argued that the judge misdirected the jury by telling

them that, even if a defendant did not know the girl was not consenting, he was

guilty of attempted rape if he tried unsuccessfully to have sexual intercourse,

being reckless whether she consented or not – ie, it was sufficient that he

could not care less whether she consented or not.

The Court of Appeal held that a man may commit the offence of attempted rape

even though he is reckless whether the woman consents to sexual intercourse

since the attempt relates to the physical activity and his mental state of

recklessness relates, as in the offence of rape itself, not to that activity but

to the absence of the woman’s consent. The appeals against conviction were


Attorney-General’s Reference (No 3 of 1992) [1994]

The defendants threw a petrol bomb towards the victims, four of whom were

inside their car and two of whom were on the pavement outside. It passed over

the car and smashed against a nearby wall. The defendants’ car then accelerated

away. The defendants were charged with attempted arson, being reckless whether

life be endangered, contrary to s1(2) of the Criminal Damage Act 1971. The trial

judge ruled that, on a charge of attempt, intent to endanger life was required;

recklessness was not sufficient. The Attorney-General referred the issue to the

Court of Appeal.

The Court of Appeal held that on a charge of attempted aggravated arson, it

was sufficient for the Crown to establish a specific intent to cause damage by

fire and that the defendant was reckless as to whether life would thereby be

endangered, because if the state of mind of the defendant was that he intended

to damage property and was reckless as to whether the life of another would

thereby be endangered, and while in that state of mind he did an act which was

more than merely preparatory to the offence, he was guilty of attempting to

commit that offence. It was not necessary that he intended that the lives of

others would be endangered by the damage which he intended.

Haughton v Smith [1975]

A van containing stolen goods was stopped by the police. It transpired that

the van was proceeding to Hertfordshire where the defendant was to make

arrangements for the disposal of the goods in the London area. In order to trap

the defendant the van was allowed to proceed on its journey with policemen

concealed inside. The van was met by the defendant who began to play a prominent

role in assisting in the disposal of the van and its load. Finally the trap was

sprung and the defendant was arrested. The prosecutor was of the opinion that,

once the police had taken charge of the van, the goods had been restored to

lawful custody, and were therefore, no longer stolen goods. Accordingly the

defendant was not charged with handling ‘stolen goods’, contrary to s22 Theft

Act 1968, but with attempting to handle stolen goods.

The House of Lords held that a person could only be convicted of an attempt

to commit an offence in circumstances where the steps taken by him in order to

commit the offence, if successfully accomplished, would have resulted in the

commission of that offence. A person who carried out certain acts in the

erroneous belief that those acts constituted an offence could not be convicted

of an attempt to commit that offence because he had taken no steps towards the

commission of an offence. In order to constitute an offence under s22 of the

Theft Act 1968 the goods had to be stolen goods at the time of the handling; it

was irrelevant that the accused believed them to be stolen goods. It followed

that, since the goods which the defendant had handled were not stolen goods, he

could not be convicted of attempting to commit the offence of handling stolen


Anderton v Ryan [1985]

The defendant had bought a video recorder, but later confessed to the police

that she believed it to have been stolen property when she bought it. The

defendant was charged with attempting to handle stolen goods, although the

prosecution was unable to prove that the video recorder had in fact been stolen


The House of Lords (by a majority of 4-1) quashed the defendant’s conviction

on the ground that she could not be guilty of attempting to handle stolen goods

unless such property was shown to have existed. A majority of their Lordships

refused to accept that the defendant’s belief that goods were stolen was

sufficient of itself to result in liability. Such a result may have been the aim

of the 1981 Act but their Lordships felt that Parliament would have to express

its intentions more clearly before the courts would be willing to impose

liability solely on the basis of what the defendant had thought she was doing,

as opposed to what she was actually doing.

R v Shivpuri ]1986]

The defendant was paid to act as a drugs courier. He was required to collect

a package containing drugs and to distribute its contents according to

instructions which would be given to him. On collecting the package the

defendant was arrested by police officers, and he confessed to them that he

believed its contents to be either heroin or cannabis. An analysis revealed the

contents of the package not to be drugs, but a harmless vegetable substance. The

defendant was convicted for attempting to be knowingly concerned in dealing with

and harbouring a controlled drug, namely heroin.

His appeal to the House of Lords was dismissed. Lord Bridge said, in applying

s1 of the Criminal Attempts Act 1981 to the facts of the case, the first

question to be asked was whether the defendant intended to commit the offence.

The answer was plainly yes. Next, did he do an act which was more than merely

preparatory to the commission of the offence? The acts were more than merely

preparatory to the commission of the intended offence. This analysis le

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