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The relevant English law is now to be found in the Criminal Attempts Act ۱۹۸۱, which followed a Law Commission report on the subject. It will be discussed by considering three separate aspects of the offence in turn-the fault element, the conduct element, and the problem of impossibility.

(a) THE FAULT ELEMENT
It has been said that, where a person is charged with an attempt, 'the intent becomes the principal ingredient of the crime.
The law on this point rarely causes much

difficulty:it must be shown that the defendant intended to cause the proscribed harm, and had the necessary knowledge of facts and circumstances. There have been appeals in cases where D has been charged with attempting to cause grievous bodily harm by driving a car at another person, and the defence has been that D did not intend to injure the other. These appeals have led the courts to establish that purpose is not required for the crime of attempt:what is needed, according to James LJ in Mohan (۱۹۷۶),is proof of 'a decision to bring about . . [the offence], no matter whether the accused desired that consequence of his act or not'. This is supposed to align the meaning of intent here with its meaning in the general law, so as to include foresight of virtual certainty,although those who regard ordinary language as important may have misgivings about this 'extension'.

A wider question of principle is whether attempts liability should be taken further.
Those wedded to a linguistic approach insist that the word 'attempt' connotes trying, trying connotes purposeful behaviour, and therefore there can be no such thing as a reckless or negligent attempt. The opposite view focuses on the element of luck in whether behaviour results in the commission of a substantive offence or not. How might these views be applied to cases where D intends to do the prohibited act but is only reckless as to the circumstances?This problem might arise on a charge of attempting to obtain property by deception, where D tries to induce V to part with property on the strength of a representation which D thinks may be false (but does not know to be false). The problem is more usually debated in the context of attempted rape, where D tries to have sexual intercourse with the victim, not knowing and not caring whether there is consent. The Criminal Attempts Act does not give an unambiguous answer:it uses the phrase 'with intent to commit' the substantive offence, which is silent on the question whether intent combined with reckless knowledge will suffice. One interpretation, based on the Law Commission report," is that the phrase 'with intent to commit' implies that D knows or believes that the victim is not consenting. Reckless knowledge is not enough, and so there could be no conviction of attempted rape on the above facts. The counter-argument is that the Act makes no reference to the degree of knowledge of circumstances (i.e. the non-consent of the victim) needed for conviction:it refers only to the requirement of intent as to conduct or consequence, and that is present in the example given. Moreover, the offence of rape itself is committed where D does not reasonably believe that V is consenting." If two men set out to have sexual intercourse with two women, not caring whether they
consent or not, it would be absurd if the one who achieved penetration was convicted of rape, whilst the other, who failed to achieve penetration despite trying, was not liable even for attempted rape. It
may be true that the latter commits sexual assault, for which the maximum is ten years' imprisonment, but attempted rape would be a more appropriate label for something so close to the full offence. These strong arguments led the Law Commission to change its mind,and the Court of Appeal in Khan et al.(۱۹۹۰) also held that a person could be convicted of attempted rape when only reckless as to whether the victim is consenting. However, under the ۲۰۰۳ Act that reasoning would have to be extended to cover a person who intends to have sexual intercourse while not holding a reasonable belief that V is consenting-in effect, combining intended conduct with negligence as to the relevant circumstances.
Such an extension would be defensible since the element of intention would remain. Unfortunately, this distinction was ignored by the Court of Appeal" when it held that a person can be convicted of attempted aggravated arson if he intends to cause damage to property while reckless as to whether the life of another would thereby be endangered. The Court purported to follow Khan, but there are two respects in which their decision went beyond it. First, Khan combined intention with recklessness as to circumstances, whereas this case combines intention with recklessness as to further consequences. Secondly, the type of recklessness required in Khan was either advertent or indifferent recklessness," whereas criminal damage involves Caldwell (inadvertent) recklessness.F Although poorly reasoned, this decision opens up the question whether we should have a general law of reckless attempts. Such a development might extend the reach of the criminal law considerably, and ought to be contemplated only after thorough enquiry." Until now, English law has resolved the question pragmatically, by creating a few specific offences of endangerment to deal with reckless behaviour on the roads and in other situations where there is a risk, but no actual occurrence, of serious consequences (see Chapter ۷.۶ and ۷.۷). Since we are concerned here with preliminary offences which go beyond the definitions of substantive crimes, is it not more judicious to proceed in this piecemeal way, thereby ensuring that the outer boundaries of the criminal are carefully regulated?

(b) THE CONDUCT ELEMENT
Since the effect of the law of attempts is to extend the criminal sanction further back than the definition of substantive offences, the question of the minimum conduct
necessary to constitute an attempt has great importance.The issue concerns incomplete attempts:when has a person gone far enough to justify criminal liability?Two schools of thought may be outlined here. First, there is the fault-centred approach, arguing that the essence of an attempt is trying to commit a crime, and that all the law should require is proof of the intention plus andy act designed to implement that intention.The reasoning is that any person who has gone so far so to translate a criminal intention into action has crossed the threshold of criminal liability, and deserves punishment (though, for the reasons given above - the possibility of aban - donment, for example-the punishment would be less than for a complete attempt). Secondly, there is the act-centred approach, of which two types may be distinguished. One type bases itself on the argument that one cannot be sure that the deterrent effect of the criminal law has failed until D has done all the acts necessary, since one could regard the law as successful if D did stop before the last act out of fear of detection and punishment. This suggests that only acts close to the substantive crime should be criminalized. The other type of act -centred approach is adopted by those who see great dangers of oppressive official action-to the detriment of individual liberties - if the ambit of the law of attempts is not restricted tightly. If any overt act were to suffice as the conduct element in attempts, wrongful arrests might be more numerous; convictions would turn largely on evidence of D's intention, so the police might be tempted to exert pressure in order to obtain a confession; and miscarriages of justice might increase,especially when inferences from silence are permissible (see subsection (c) below).To safeguard the liberty of citizens and to assure people that justice is being fairly administered, the law should require proof of an unambiguous act close to the commission of the crime before conviction of an attempt. Otherwise, we would be risking a world of thought crimes and thought police.
The choices for the conduct element in attempts might therefore be ranged along a continuum. The least requirement would be' any overt act', but that would be objectionable as risking oppressive police practices and as leaving little opportunity for an attempter to withdraw voluntarily.The most demanding requirement would be the 'last act' or 'final stage', but that goes too far in the other direction, leaving little time for the police to intervene to prevent the occurrence of harm and allowing the defence to gain and acquittal by raising a doubt wheter D had actually done the very last act. In the United States the Model Penal Code requires D to have taken a 'substantial step' towards the commission of the full offence. This might appear to breach the principle of maximum certainty, but the Model Penal Code seeks to avoid this by listing a number of authoritative examples of 'substantial step'. Thus, the approach recognizes the inevitable flexibility in questions of degree such as this but seeks to give some firm guidance. The Criminal Attempts Act ۱۹۸۱ requires D to have done 'an act which is more than merely preparatory to the commission of the offence'. Opinions differ on whether this is closer to the fault-centred approach than is the 'substantial step' test, but it is certainly more vague(since there are no authoritative examples), and the Act leaves the application of the test entirely to the jury, once the judge has found that there is sufficient evidence of an attempt.At the earlier stage of arrest, it leaves much to the judgement of the police officer.
On a plain reading of the Act the proper test is whether D was still engaged in merely preparatory acts, in which case he is not guilty of attempt, or whether his conduct was more than merely preparatory. This is inevitably a question of degree, and the Court of Appeal has given little indication of how to classify different cases.Thus, in Jones (۱۹۹۰) D bought a gun, shortened its barrel, put on a disguise, and then jumped into the back seat of his rival's car. D pointed the loaded gun at his rival and said 'You are not going to like this', but his rival then grabbed the gun.The defence argument was that this could not amount to attempted murder:what D had done was not more than merely preparatory, because he still had to release the safety catch, put his finger on the trigger, and pull it. The Court of Appeal dismissed this argument, which was more appropriate to the 'last act' test, and held that once D had climbed into the car and pointed the gun there was ample evidence for jury to hold that attempted murder had been cimmitted.A more difficult case is campbell (۱۹۹۱) where the police had received information about a planned post office robbery. They watched D in the street outside the post office. They arrested him as he approached the door of the post office, and found him to be carrying an imitation firearm and a threatening note, and carrying (but not wearing) sunglasses. The Court of Appeal quashed D's conviction for attempted robbery, holding that it is extremely unlikely that a person could be in a position to carry out the offence. He had not entered the post office, and was no longer wearing the sunglasses. This decision was followed in Geddes (۱۹۹۶), Where the Court of Appeal quashed a conviction for attempted false imprisonment.D had been seen loitering around the lavatory block of a boys' school, and the prosecution case rested on a can of cider found in a lavatory cubicle, D's rucksack (containing a large kitchen knife, rope, and masking tape) found in nearby bushes, and evidence from a third party that D was sexually fascinated by young boys. The Court harboured no doubt that D's intentions were. as the prosecution alleged, but held ('with the gravest unease') that, since D had not spoken to or confronted any pupil at the school, his conduct had been merely preparatory and no more. On the other side of the line fell Tosti (۱۹۹۷), where convictions for attempted burglary were upheld. D and another man were-seen crouching by the door of a barn, examining the padlock. When disturbed they tried to run away, and D was caught. His car was found nearby, and there was oxy-acetylene cutting equipment concealed in a hedge. The Court of Appeal took the view that D had done an act showing that he had tried to commit the offence, rather than merely putting himself in a position to do so. The Court of Appeal's various endeavours to reformulate the statutory test so that it can be applied meaningfully to the facts of differing cases have not been conspicu_ously successful. It is hardly helpful to refer to the steering of a 'mid-way course' between the 'last act' test and the penalization of merely preparatory acts." The Court in Tosti rightly emphasized the distinction between preparatory acts, which may constitute an attempt, and merely preparatory acts, which may not; but that distinction is difficult to apply to Campbell, where one might suggest that D'had gone beyond mere preparation. Sheer physical proximity to the intended victim or targeted property may be the only sensible distinction between the convictions upheld in Jones and in Tosti and the other decisions. The time has surely come for a renewed effort to formulate some consolidated guidelines for trial judges on the application of the test, so that English law can follow the example of the Model Penal Code in moving closer to the principle of maximum certainty. So long as it is made clear that the guidelines are non-exhaustive, they ought to provide more help than hindrance.

(c) THE PROBLEM OF IMPoSSIBILITy
Just as the conduct element in attempts relates chiefly to incomplete attempts, so the problem of impossibility usually arises in connection with complete attempts. Once again, there are fault-centred and act-centred perspectives to be considered, according to whether one takes the view that D's beliefs or the reality of D's conduct should be the primary determinant of liability.
The fault-centred approach to impossible attempts is a straightforward application of the subjective principle (see Chapter ۵.۲(a) above): a person should be judged on the facts or circumstances as he or she believed them to be at the time. We have seen how the belief principle operates as a ground of exculpation where D is labouring under a mistake of fact (see Chapter ۵.۳(c)).Here it operates as a ground of inculpation. In other words, where D believes that he is doing acts which amount to an offence, it is justifiable to convict of an attempt to commit that offence. D's state of mind is just as blameworthy as it would be if the facts Were as they are believed to be. Thus, we are justified in convicting the person who smuggles dried lettuce leaves in the belief that they are cannabis, and the person who puts sugar in sorneone's drink in the belief that it is cyanide, and the person who handles goods in the belief that they are stolen. In all these cases there is no relevant moral difference between their culpability and the culpability in cases where the substances really are cannabis, cyanide, and stolen goods.
The act-centred approach points to the absence of actual danger in these cases. Thus it is argued that there is a risk of oppression if the law criminalizes people in objectively innocent situations." Part ofthe concern here is that convictions might be based on confessions which are the result of fear, confusion, or even police fabrication." Without the need to establish any objectively incriminating facts, the police might construct a case simply on the basis of remarks attributed to the accused person. Anyone carrying a bag might be liable to be arrested and to have attributed to him or her the remark:I thought it contained drugs'. These arguments based on the threat to individual rights are too important to be dismissed peremptorily, particularly since the Criminal Justice and Public Order Act ۱۹۹۴ provides that adverse inferences may be drawn from a suspect's silence in the face of key questions, without also providing that statements attributed by the police to the suspect, which are unrecorded and which the suspect denies, should be inadmissible in evidence." There has been no shortage of research findings to the effect that new controls on the police tend to be manipulated in practice so that the intended goals may not be achieved." It may therefore be unsafe to expect the laws of criminal procedure to prevent any dangers to individual rights:if a fault-centred law leads to police malpractice which cannot otherwise be prevented, it ought to be narrowed. This leaves untouched the fault -centred argument that there really is no difference in terms of moral culpability or dangerousness between persons who actually do make an impossible attempt and many ordinary attempters." However, there are also principled arguments in favour of at least a partly objectivist law of attempts, either allowing impossibility as a defence in those relatively unusual circumstances where D's endeavour fails to connect with the real world, or more broadly developing the view that actual consequences make a significant moral difference."
There would be little difference between the two approaches over the case ofD, who fired a shot at V and missed because his aim was not good enough. That is a classic criminal attempt. But what is the difference between that and a case in which E puts sugar in X's drink in the belief that it is cyanide? On the act-centred approach there is no social danger in the latter case, because sugar is innocuous;
yet it is equally true that there is no danger in the first case, because shooting and missing is innocuous. Some might say that D might try again and the shot might not miss:yet it is equally possible that E might try again and might choose an ingredient which actually is poisonous. It seems, then, that the act -centred approach incorporates one limb of the subjective principle-that people should be judged on the consequences they intend to happen-but not the other (belief) limb-that people should be judged on the facts as they believe them to be. There is no principled explanation for accepting one and not the other, apart from the argument about police powers and individual liberty, which ought (if possible) to be tackled directly, and not through a distortion of the law of attempts.
The recent history of English law contains evidence of both approaches. The House of Lords in Haughton v Smith adopted an act-centred stance, but the Law Commis_sion accepted the arguments above and recommended a fault-centred approach, in which impossibility would be no defence to liability. Debate continued during the passage of the new law, and one result of further changes of mind by the government was two strangely-worded provisions in s ۱(۲) and (۳) of the Criminal Attempts Act ۱۹۸۱.The Act purported to follow the Law Commission and to criminalize impossible attempts, but the House of Lords interpreted the provisions so as not to achieve this result, and it was only in Shivpuri (۱۹۸۶) that it was settled that, in the English law of attempts, D is judged on the facts as he or she believed them to be. Thus, if a person buys a video recorder believing that it is stolen when it is not, that constitutes an attempt to handle stolen goods.
The fault-centred approach here has been limited to beliefs about facts. If D is mistaken about the law, believing that certain conduct is an offence when it is not, there is no liability for an attempt. Thus, where D believed that he was smuggling currency into the country but there is no offence of importing currency, there could be no conviction." This is easily explained:there is no crime to be attempted, only an imaginary crime. But it can also be seen as a corollary of the maxim that ignorance of the law is no excuse." a mistake about the criminal law neither exculpates nor inculpates. By contrast, a mistake as to the facts may exculpate (subject to other policies relevant to mistakes) or inculpate (as an impossible attempt), since the general principle is that D is judged on the facts as he or she believed them to be.